
    LEONHARDT v. CITY OF NEW YORK.
    (Supreme Court, Appellate Term.
    March 5, 1908.)
    1. Waters and Water Courses—Municipal Corporations—Break in Private Service Water Pipe—Liability of City.
    The break, from which came the overflow of water by which plaintiff was damaged, having been in his private service pipe, the city is not responsible, unless the proximate cause can be traced to the wrongful acts of its employés.
    2. Same—Duty as to Repairs.
    Where city employés, searching for a leak from which water came on plaintiff’s premises, discovered it in his private service pipe, temporarily stopped it, and showed it to plaintiff, and left the excavation open, they were justified in assuming, when notified by him to close the excavation, that he had, as was his duty, repaired the leak.
    3. Same—Contributory Negligence.
    Even if the employés of the city, in filling the excavation made in discovering a leak in plaintiff’s private service water pipe, negligently broke' the pipe, plaintiff was guilty of contributory negligence in requesting it to be filled without repairing the leak, as was his duty, after the city employes had temporarily stopped it.
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by Jacob M. Leonhardt against the city of New York. From a judgment for defendant, plaintiff appeals. Affirmed.
    Argued before GILDERSLEEVE, P. J., and BISCHOFF and MacLEAN, JJ.
    Leon Kronfeld, for appellant.
    Francis K. Pendleton (Theodore Connoly and Thomas F. Noonan, of counsel), for respondent.
   GILDERSLEEVE, P. J.

The action is for damages from the leakage as by careless and negligent cutting and breaking by defendant’s servants of said pipe. The trial court dismissed the complaint for failure of proof.

It appears from the testimony that in February, 1907, the plaintiff discovered water coming into his premises from some unobservable leakage and notified the water department of the fact. The department sent men to ascertain the trouble, and after considerable excavating discovered that the leak was in plaintiff’s private service pipe. It further appears, without contradiction, that when the leak was discovered on March 24th it was shown to the plaintiff by one of the employés of the water department, who fixed it so that there was no leak, and it gave no trouble until April 11th; that the plaintiff up to this time did nothing to the pipe, and the excavation in the meantime remained open; that plaintiff notified the water department to close the excavation, and the same men who made it came and filled it up; that forthwith the water overflowed in the same place where it leaked before; that the plaintiff then employed his own plumber to make the necessary repairs, and they were made at an expense of about $216. The damages claimed are this plumber’s bill and an item amounting to about $30 for damage to some of plaintiff’s chattels. The plaintiff testified that the pipe had been “bent over and hammered; but it was not hammered properly.”

As the break from which the overflow of water came was in the plaintiff’s private service pipe, the city was not responsible for the overflow, and consequent damage, unless the proximate cause should be traced to the wrongful acts of the city’s employés. Kosmak v. Mayor, 117 N. Y. 361, 22 N. E. 945. There is no question about the location of the leak. The conclusion from the evidence must be that when the leak was discovered the city employés stopped it temporarily, and left the excavation open to give the plaintiff an opportunity to repair the leak, as was his duty, and that when notified to fill the excavation the city employés were justified in assuming that the work of repair had been properly done. In fact, the plaintiff had done nothing whatever by way of repairing the break. The only ground upon which any liability of the defendant can be predicated must rest upon an inference that the defendant’s employés were guilty of negligently cutting or breaking the pipe when in the act of filling up the hole. If the evidence warranted such an inference, and there is grave doubt that it does, it must be said that the plaintiff was not free from contributory negligence in neglecting to repair the break and in requesting the filling up of the excavation while the pipe was in a defective condition. All considered, we are of the opinion that the complaint was properly dismissed, and that the judgment should be affirmed.

Judgment affirmed, with costs to the respondent. All concur.  