
    William Weidman, Appellant, v. The City of New York, Respondent.
    
      Negligente — overflow of a city sewer upon adjoining private pc'operty — what proof is insufficient to establish, negligence on thepa/rt of the city.
    
    In an action brought against the city of New York by a lessee of premises • located therein to recover, on the ground of negligence, damages which the plaintiff sustained in consequence of his premises being flooded on several occasions by water that had backed up from a sewer which the city had constructed through the street in front of the premises, no negligence on the part of the defendant in the construction of the sewer was shown.
    The first two floods occurred July 4, 1898, and July 18, 1898. On being notified thereof, the defendant on each occasion immediately sent its workmen to remedy the defect. The workmen found the sewer obstructed by rocks and stones which apparently accounted for the trouble. They removed them and the sewer continued to perform its functions until April 7, 1899, when another overflow occurred. Upon receiving notice of the latter overflow, the defendant again sent its workmen to remedy the trouble. On this occasion the workmen suspected for the first time that the trouble was in the sewer itself. They accordingly dug down to the sewer and found it broken, with fragments lying in the pipe and choking it up. It was also found that prior to the total collapse Of the sewer," there had been a partial depression of the pipe which had reduced its former diameter of eighteen inches to about nine inches, thus creating a place where obstructions would naturally accumulate.
    During the progress of the repairs other floods occurred. There was no evidence that any improper measures were resorted to in the conduct of the work of repair.
    
      
      Held, that the city was not guilty of any negligence in relation to the maintenance and repair of the sewer and that the trial justice properly dismissed the complaint.
    Patterson, J., dissented.
    Appeal by the plaintiff, William' Weidrnan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the loth day of January, 1902, upon the dismissal of the complaint by direction of. the court-after "a trial at the New York Trial Term.
    
      W. M. Jdosebault, for the appellant.
    
      Theodore OormoT/y., for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages by the lessee of premises in Second' avenue in the - city of New-York which were on the 4th and 18th of July, 1898, and on the 7th, 8th, 23d and 24th of April, 1899, flooded by water • backing up from the sewer which the defendant had constructed and laid through the street in front of the said premises. It was alleged that the cause of these floods was the defendant’s negligence in the construction of the sewer and in failing to keep it in repair; and also that in April, 1899, when one of the floods occurred, the defendant so negligently conducted itself in attempting to repair the sewer" as to cause another flood. The answer of the defendant was a general denial. There was no evidence whatever. tending to show any negligence upon the part of "the defendant in the construction of the sewer ; but it did appear that upon the-4th and 18th of July; 1898, and on the 7th of April, 1899, water backed up from the sewer, it. raining very hard, when the overflow took place on these dates. After each of "the above-mentioned overflows, the defendant sent workmen to remedy the trouble and they found that the sewer was obstructed by rocks, "stones, ete. On the two occasions in July the trouble was quickly remedied by the removal of these obstructions, but in the beginning of April the workmen found the difficulty greater and were kept at work, until some time in May.. They pumped the water out of "the plaintiff’s cellar and used a steam pump drawing up the water through the manhole near the plaintiff’s premises, but about April 23, 1899, finding that the water was still not flowing properly through the sewer, they were compelled to open the street and dig down to the sewer ; and in doing so they used heavy sledge hammers to break the stones that were in the way and sound their way with long and heavy bars of iron. While they were at work in this manner a fresh flood occurred which caused greater damage than any of those that had occurred previously, the water coming into- the cellar not only through the sewer trap but also through the crevices between the stones of the front cellar wall. When the men reached the sewer -they found it broken, with fragments lying in the pipe and choking it up. After the repair of the sewer there was no further difficulty.

There was evidence tending to show that when the sewer pipe was uncovered it was found that prior to the total break down of the sewer there had been a partial depression of the pipe which had reduced its former diameter of eighteen inches to about nine inches, thus creating a place where obstructions to the passage -of the sewage would naturally accumulate.

Upon this state of the evidence the complaint was dismissed, and from such dismissal this appeal is taken.

We fail to see where there is any evidence of negligence upon the part of the city in reference to its care of the sewer in question. When notified of the overflow it immediately set to work to remedy the difficulties if any; and after the overflows in July, 1898, when obstructions were found which accounted for the overflow, the sewer performed its work until April, 1899, and from the time when it first received notice of this latter overflow its workmen were continuously working at it in order to remedy the defect therein, -and they then found that there was a depression in the sewer which had a tendency to accumulate foreign matter and diminish its capacity very materially. As soon as this was discovered it was remedied, and the sewer has performed its functions properly ever .since, so far as the evidence shows.

The city is not an insurer of the condition of its various appliances for the comfort and convenience of its inhabitants, hut is bound to use reasonable care and diligence in caring for these various appliances and in keeping the same in repair. In the case at bar, after the repairs were made to the sewer in July, 1898, the city had no reason to suppose that there was any defect in the sewer itself, but that the results which then obtained had been caused by foreign matter, which they had no ■ reason to suppose would be injected into the sewer.. And it was only when they found that the ordinary means of rectifying the difficulty did not produce proper -results that they became suspicious of the' fact that something was .wrong with the sewer itself, and they immediately set about to go .down to it to remedy the defect, and it was in the progress of this .work that much of the damage sought to he recovered here was suff ered. There was no evidence whatever that any improper measures were resorted to in the conduct of the work of repair. The force they were compelled to use in getting down to the sewer by means of sledge hammers, drills, etc., was. necessary because of the nature of the filling above the sewer. We cannot say, therefore, that the city was guilty of any negligence in the manner in which it conducted itself in relation to the maintenance and repair' of this sewer..

The judgment should, therefore, be affirmed, with costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Patterson, J., dissented.

Judgment affirmed, with costs.  