
    Kosmak v. Mayor, Etc., of the City of New York.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Municipal Corporations—Sewers—Pleading—Variance.
    Under a complaint charging a city with a breach of duty in failing to provide a proper sewer, whereby plaintiff's premises were injured, plaintiff cannot recover on proof that the injury was caused by overflowing a drain constructed as a private drain by the former owner of adjacent premises, which have since been con veyed to trustees of a bridge held for the city’s benefit, there being a variance between the pleading and the proof.
    2. Same—Evidence.
    Defendant is not liable for injuries sustained by plaintiff by the overflow of such a private drain into plaintiff’s premises through a connection made by plaintiff himself, with the private drain, knowing it to be private, under a permit from the city officials.
    8. Same.
    The acquisition of the property on which the private drain was located by the bridge trustees neither constituted an adoption of the drain as a public sewer by the city, nor imposed the duty on the trustees of keeping it open, plaintiff being a mere licensee.
    4. Evidence—Depositions.
    When upon the cross-examination of a witness he is asked if he did not previously swear to certain statements, and counsel has a deposition of the witness formerly taken, of which he makes use in interrogating the witness, but which is not in evidence, the adverse party does not thereby acquire the right to introduce the whole deposition.
    Appeal from special term, New York county.
    Action by Emil Kosmak against the mayor, aldermen, and commonalty of the city of New York, to recover damages for defendant’s alleged negligence. Verdict and judgment for defendant. Plaintiif appeals.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      David Leventritt, for appellant. Henry R. Beekman, Corp. Counsel, and David J. Dean, for respondent.
   Van Brunt, P. J.

The complaint in this action sets up two causes of action. In the first cause of action it is alleged that the plaintiff was the lessee of the premises known as Nos. 13 and 15 Chatham street, in the city of New York, which he occupied as a restaurant, wine and liquor saloon; that the defendant was a municipal corporation, and as such had charge of the sewers laid in and under the streets of the city of New York; that on or about the 1st of February, 1882, the defendant committed a nuisance upon the aforesaid premises by causing the refuse and contents of the sewer situated on Frankfort street in said city to be emptied thereon, and that, notwithstanding due and proper notice thereof was given to the proper officers of the defendant, the defendant continued to maintain the same from February, 1882, to October, 1883, whereby the plaintiff was damaged to the extent of $50,000. For a second cause of action the complaint makes the same allegations in regard to ownership and occupancy by the plaintiff, and that the defendant, as such municipal corporation, had charge of the sewers laid in and under the streets of the city of New York, and that it was the duty of the defendant to use reasonable care and diligence in the management and repairs of such sewers, so that the abutting owners should not be injured thereby, and that in disregard of said duty the defendant so negligently and carelessly managed the sewer laid in Frankfort street and Chatham street that the refuse and contents of said sewers, and each of them, flowed in and upon the premises of the plaintiff from February 1, 1882, to October 24, 1883. That the plaintiff suffered damage to the amount of $50,000, which damage the plaintiff claimed to recover in this action. Upon the trial it was proven that the plaintiff occupied the premises known as Íío. 15 Chatham street during the periods mentioned in the complaint; that a public sewer had been constructed in Frankfort street from the corner of Frankfort and Chatham streets towards the East river; that on the 13th of October, 1857, upon the application of the owner of house Ho. 17 Chatham street, a permit was issued to her to construct a private drain from said house, through Chatham street, to connect with the sewer in Frankfort street; that said drain passed the premises of the plaintiff, and connected with the Frankfort-Streeb sewer on its northerly side at a point some feet distant from the corner of Chatham street. In October, 1880, a permit was issued on behalf of the then owner of the plaintiff’s premises to open the street for the purpose of making a connection with the private drain constructed by the owner of the premises Ho. 15 Chatham street. At the time of applying for permission to make this connection the applicant was told by the permit clerk (and this was the fact) that there was no public sewer in Chatham street at that point. The applicant then wanted to know' how the building 17 Chatham street was drained, and he was told that it was drained by a private drain, built in 1857, connected with the sewer in Frankfort street. He was also told that the property Ho. 17 Chatham street had been taken for the Brooklyn bridge, and that no permission to use the drain would be given, unless -with permission of the bridge officials, and subsequently the applicant returned and said he had the consent of the bridge officials to connect with the drain, and thereupon the permit was given. He was also told that if he went in there he went at his own risk, as the city officials did not know anything about it, and did not have anything to do with it, (referring to the private drain.) On this permission the pavement was taken up and the connection made to drain the plaintiff’s premises from the drain in question. The plaintiff fitted up the premises as a restaurant and bar-room, and commenced business in February, 1881, and subsequently, in February, 1882, and on several occasions thereafter, sewer refuse ran into the plaintiff’s premises through the connection which had been made with the drain, and his property was injured. On the 26th of February, 1883, and at various times thereafter, the plaintiff gave notice that his premises were flooded from the sewer. In October, 1883, a public sewer was built in Chat-ham street, and the plaintiff’s premises connected therewith, and since that time the drainage thereof has been perfect.

The main question submitted to the jury upon the trial was whether the overflow which came into the plaintiff’s premises resulted from the stoppage of the private drain or the public sewer in Frankfort street, and the jury were instructed that if the drain in Chatham street was obstructed, and hence arose the difficulty, the city was not responsible; whereas, if the jury found that the obstruction was in the Frankfort-Street sewer the public authorities had not performed their duty, and they became responsible for the overflow. The plaintiff sought to show that the premises Ho. 17 Chatham street, to which this drain was an appurtenance, had been conveyed by the owner thereof to the trustees of the Brooklyn bridge, and that such trustees had, by carrying into this sewer the water from the bridge, overcharged this drain, and that this was one of the causes of the overflow; claiming that as the bridge trustees were the joint agents of the two cities of Brooklyn and Hew York, and that as they held this property in trust for the beneQt of the two cities, and as the two cities were responsible forthe wrongs which these bridge trustees committed in the administration of their trust, therefore in this action the plaintiff had a right to recover the damages thereby sustained. There seem, however, to be two answers to this proposition. In the first place he has alleged no such cause of action. The cause of action alleged in the complaint arises from the public duty which the city of Hew York owes to all its citizens in the maintenance of its public streets and sewers. It has no reference to any act winch it may have perpetrated by its agents in respect to the management of its own private property. The cause of action is entirely separate and distinct from what would have arisen (if any exists) had it been attempted to charge the city as the owner of these premises for misuse of the appurtenances thereof, which resulted in damage to the plaintiff. But it may well be said that, even if the plaintiff had declared so as to have entitled him to have this proof admitted, no cause of action whatever had accrued. The damage which the plaintiff suffered arose from the connection which he had voluntarily made. It is clear he was a mere licensee for its use, and if, as the result of that use, he suffered damage, he had nobody to thank but himself. He had the means within his own control to stop that damage at once by cutting off his connection with the drain from which the damage arose, and the owners of Ho. 17 Chatham street were under no greater obligation to keep that sewer in proper condition than was the owner of Ho. 15 Chatham street, who, by their license, had been permitted to make use of that drain. There does not, therefore, seem tobe any ground upon which the plaintiff could sustain a recovery under the pleadings, even if the plaintiff had been allowed to show that the property Ho. 17 Chatham street, and the drain appertaining thereto, had been conveyed to the trustees of the bridge, and was owned by the city of Brooklyn and the city of Hew York, and that these cities were responsible for the acts of the bridge trustees. Heither can anything be predicated upon the fact that the corporation had issued the permit to make this connection with this drain. It appears from the evidence that, at the time that permit was applied for, the applicant was told that this was a private drain, and that the connection could not be made except upon the consent of its owners. It is urged that it was error to admit this evidence; but, if it was error to admit this evidence, certainly it was error to admit the evidence of the clerk issuing the permit for the purpose of showing that the authorities had exercised dominion over this drain. If the clerk had the power to act for the city in the issuing of the permit, and thereby bind the city to the acknowledgment of this drain as a public drain, he certainly had equal authority to restrict that permit, and to prevent its operating in that direction. In fact it would be rather a strained argument to hold that a permit clerk, who has the right to issue a permit to open a public sewer, (which sewers can only be opened under the regulations of the city authorities,) could, by such permit, commit the city to the adoption of a private work. There is no principle upon which such a claim can be sustained, and it is only when there has been an acknowledgment and adoption by the public authorities that any right can be predicated upon the result of such adoption; and it is extremely doubtful whether there are any authorities that can adopt a private sewer and make it a public one. There are distinct provisions of law in regard to the construction of sewers. The law provides as to how they shall be laid, and how the plans shall be prepared so that there shall be a unity of system in reference to their construction. All these provisions would be abrogated by the public authorities if they had the power to adopt a private work by anything that they might do.

Various cases are cited for the purpose of establishing the fact that it is a familiar principle that municipal corporations are responsible for all private drains or sewers of third persons in thq event of adoption, user, or dominion. But it will be found that in the leading case of Nims v. City of Troy, 59 N. Y. 500, portions of that sewer were actually constructed by the city authorities, and that it was part and parcel of the same plan, and there does not appear to have been any restriction upon the city authorities as to the manner in which the sewers should be built,—a very different case from the one at bar.

The authorities cited in reference to the adoption of a public street have no application. In fact there is nothing in this case going to show a public adoption, except the issuing of the permit, which, from the very circumstances attending its issue, could not have any such effect, and by the fact of the bridge trustees having used the drain in connection with the very premises to drain which it was built.

We are asked, was not the excluded testimony—namely, the proof as to the premises being conveyed to the bridge trustees—the strongest and most conclusive possible to show adoption or possession, use or control, of the Chat-ham-Street sewer by the defendant? As we have already said, that was no proof whatever of any adoption of the sewer by the city in its public capacity. By the conveyance and use of the sewer by the bridge trustees it was evidence of a possession, use, or control of the sewer by the cities of Hew York and Brooklyn, and that only as private owners, and not a possession, use, or control of such sewer by the city of Hew York under any public authority, or impressed with any public duty. As has already been suggested, even if the drain was overcharged by the bridge trustees, it is difficult to see that they were under any obligation to the plaintiff. The users of a common drain have no action one against the other. It is no more the duty of the one to keep it open than it is the duty of the other, and if this drain was stopped it was just as much the duty of the plaintiff to see that it was opened as it was the duty of the owners of the property Ho. 17 Chatham street to do so. The action of the bridge trustees in acquiring the title to this property and its appurtenances in no manner rendered the drain a public sewer. It was an appurtenant to the property just the same as before, and was just as private as it liad been before; and the mere fact that the cities of Hew York and Brooklyn owned this property, represented by their servants, the bridge trustees, in no wise altered this relation. The court, therefore, seems to have been entirely correct in holding that the plaintiff had no right to recover if the damage sustained by him resulted from a stoppage in the private drain which had been constructed to connect 17 Chatham street with the sewer in Frankfort street, and the jury having found bytheir verdict that the obstruction was not in Frankfort street, which finding was certainly according to the evidence, there seems to be no reason for disturbing the verdict which has been rendered.

Various other exceptions have been taken to the rejection of evidence. Among others was an objection to the reading of a portion of the testimony taken on the preliminary examination of the plaintiff, pursuant to the statute, by the comptroller. The record shows that the original of such examination was in court, and the plaintiff was shown what purported to be his signature to such examination, and asked if it was his, and lie said it was. He was then asked whether lie did not swpar thus and so in that examination before the comptroller, and a variety of questions were put to him in that form. It appears from the record—improperly, as no such statement should have been made, in view of the manifest manner in which the question was put— that the questioner read from this examination, and asked the witness whether he did'not swear thus and so before the comptroller. It was not at all necessary in order to frame a perfect question that he should have shown the plaintiff this examination, or read from any portion of it; but if he chose to put the question, using the examination for the purpose of framing the question, the examiner had a right to do so. He was not reading the examination in evidence, or any part of it. He was only asking the witness whether, on a previous occasion in connection with this transaction, he had not stated certain things. This gave no right upon the part of the plaintiff to have read the whole of his deposition. If there was anything that was pertinent in reference to-the matter inquired about, and which would explain the answers which he then made, it was competent upon the part of his counsel to have asked him: “Do you not also state thus and so in connection with the matter about which you have testified?” Or, in the event of his having been asked for a statement which formed part of the testimony relating to a particular point, he could have been asked to state the balance relating to that subject; but the mere fact of his having been asked whether he had or had not testified on a previous occasion in a certain way in no way gave the plaintiff the right to read the balance of such deposition in evidence, as no part of the deposition ever had been offered in evidence, and it was only a method of cross-examinatian well recognized and well established.

Our attention is called to another exception which is claimed to exist, and which, if it did exist, would be a very serious impediment in the way of the affirmance of this judgment. It is claimed upon the part of the appellant that the following question was excluded,—the witness on the stand being Mr. Stevenson Towle, who had testified that during the years 1882 and 1883 he held the position of chief engineer of the bureau of sewers, and it is claimed that Mr. Towle, by reason of his position, might well be presumed to be officially cognizant of all acts of the city which were performed in reference to that sewer, in order to establish adoption or dominion over the sewer by the city. The question put to Mr. Towle was: “Did your department do anything with that private drain while you were there, so far as you know?” It is claimed that this question was put by the plaintiff’s counsel, and was excluded, and that the plaintiff excepted. It however appears from the record that the question was put by defendant’s counsel; that the plaintiff objected to its being answered, the objection was overruled and an exception taken, and the question was answered: “We did not.” Upon the whole case we are of opinion that no error was committed, and that the judgment should be affirmed, with costs. All concur.  