
    James R. F. Kelly and William D. Kelley, Respondents, v. The City of New York, Appellant.
    
      Indepéncíéht contractors with a municipality to construct a sewer — damage caused by water being discharged into such sewer from a sewer built by another independent contractor with such municipality — when the municipality is not 'liable.
    
    The city of New York, for the purpose of perfecting its system of water supply, let two independent contracts, one to James R. F. Kelly and William D. Kelley, involving the construction of a sewer,' and the other to one Gilder-sleeve, which involved the making Of an excavation, the building of certain cellar walls and the construction of a sewer to the point where the work of the other Contractors commenced. It was contemplated that the work of the Kellys should be completed prior to that of Gildersl'eeve, but neither of the contracts' was completed within the stipulated time. Surface water accumulated from time to time in the excavation made by Gildersleeve, and during the progress of the work it was necessary for him to pump out the same. On temporarily ceasing work, Gildersleeve stopped pumping and the surface water which accumulated in the excavation,.either by percolation or through a sewer, found its way into the trench dug by the Kellys, causing them great damage.
    The Kellys, by their contract, agreed to “do all pumping and do all other work •necessary for taking care of the water that may interfere with the operations of construction * * * the.contract provided that “If, during the progress of any excavation on the line of this contract, water'shall be encountered, it shall be the duty of the contractor, at his own cost and expense, to provide such machinery, pumps, labor, timber and other materials as shall be necessary to maintain such excavation and to keep it free from water; ” that the Kellys “shall provide for the flow of all sewers, drains and water courses interrupted during the progress of the work; ” that the aqueduct commissioners “shall have the right to connect any sewer or sewers with the sewers herein described, at any time before they are finally completed; ” and “All loss or damage arising out of the nature of the work to be done under this contract, or from any unforeseen or unusual obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, is to be sustained by the contractor.”
    
      Held, that the city was not liable to the Kellys for the damages resulting from the water which flowed into their trench;
    That the case came within the rule that when a city has power to let work and it enters into a contract with competent contractors, doing an independent business, who agree to furnish the necessary materials and labor and make the entire improvement according to specifications prepared in advance, for a lump sum, or its equivalent, they are not the servants or agents of the city, but are independent contractors, and the city is not liable for their negligence, even when it reserves the right to change, inspect and supervise the work to the extent necessary to produce the result intended by the contract, provided the plan is reasonably safe, the work is lawful, is not a nuisance when completed and there is no interference therewith by municipal. officers, which results in injury.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of May, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Terence Farley, for the appellant.
    
      Abraham Benedict, for the respondents.
   McLaughlin, J.:

The aqueduct commissioners of the city of New York, on the-20th of August, 1899, advertised for sealed proposals for “ building overflow and blow-off sewers, water pipes and appurtenances in connection with the Jerome Park Reservoir of the New Croton Aqueduct, * * * and particularly for a sewer on East Two hundred and Fourth street in said city.”

The plaintiffs submitted a proposal, which was accepted, and on the 18th of. September, 1899, ¡a contract was entered into between them and the aqueduct commissioners, acting for and on behalf of' the city, one of the provisions of which required the plaintiffs to commence work within ten days thereafter and to complete the same on or before July 1, 1900. Anticipating, however, that-they would be unable to. finish the work within the time stipulated,, they, bn the 23d of June, 1900, obtained an extension until November 30, 1900.' On the 16th day of November, 1900, they obtained a second extension "to June 1, 1901. The work to be done and the materials to be furnished by the plaintiffs under their contract was to dig a trench: and'place therein water mains and a sewer running-from the easterly end of East Two Hundred and Fourth street at its' j'undtibn with Mosholu Parkway south to Jerome avenue" and north in Jerome avenue to a high service pumping station, and was part; pf the work undertaken by the city to perfect a system of water supply made necessary by the building of the Jerome Park reservoir.

■ As a part of this system, the department of water supply, on the 26th of October, 1899, made a contract with one Gildersleeve to-make the necessary excavation and construct the foundation walls.for a high service pumping station at or near one end of the work agreed, to be performed by the plaintiffs, and to make the necessary connections with such work .when completed. 'Gildersleeve agreed to commence work within ten days after the execution of his contract and to complete the same within 200 days thereafter — Sundays and holidays excluded — unless delayed by the elements or the action of the other party to the contract. He did not complete his contract -Within the time specified, either because the plaintiffs had not completed their work, so that he could make the necessary connections, or for. other reasons. In December, 1900, however, he had excavated sufficiently to, and had built the foundation and cellar walls. and a sewer which extended under the bottom. of the cellar the whole length of the proposed building, and then from it to what is termed “ Manhole 18,” the point or place on the plaintiffs’ work where the pipes and sewers were to be connected. Surface water accumulated from time to time in the excavation made by Gilder-sleeve and during the progress of the work carried on by him it was necessary to pump out the same. When he quit work, however, which he did for a tithe in December, 1900, he stopped pumping and the surface water or some part of it which thereafter accumulated in the cellar, either percolated through the earth or was-thrown by the sewer, or both, into the trench contracted to be dug by the plaintiffs, doing them a large amount of damage, to recover which this action was brought, on the ground that it was an act of negligence on the part of the city in causing or permitting the water to accumulate in the excavation made by Gildersleeve. The particular act of negligence alleged in the complaint was that: “Between March 1, 1900, and January 1, 1901, the defendant caused a large excavation to be made in the earth adjacent to the aforesaid trench excavated by the plaintiffs, and carelessly and negligently connected said excavation and the plaintiffs’ line of work by a sewer, pipes and other openings, with the aforesaid trench, and carelessly and negligently caused or suffered and permitted a great quantity of water to accumulate in said excavation, without taking any means to prevent said water, by percolation through the intervening bank of earth, and by flowing through the aforesaid sewer, pipes and other openings, from flowing in large quantities into the aforesaid trench constructed by the plaintiffs.” The answer put in issue the material allegations of the complaint..

At the trial much evidence was offered by the respective parties bearing upon the issue involved and at the conclusion of which the jury rendered a verdict in favor of the plaintiffs, and from the judgment entered thereon the defendant has appealed.

I am of the opinion that the judgment should be reversed. There is no basis for the claim made by the plaintiffs against the city and the evidence does not sustain the jury’s verdict. Before the plaintiffs could recover they were obligated to show some breach of duty on the part of the defendant either by omission or commission, and this they failed to do. It is conceded that the city has. paid all it agreed to pay under the contract, but it is claimed it is liable for the damages sustained outside and independent of the contract. .

The city certainly had the right to make the contract which it did withMJildersleeve. That was neither a negligent nor an unlawful act. The work to be performed under that contract was a necessary part of the general undertaking to supply the city with water. Indeed, I do not understand that the plaintiffs claim there was any negligence in the letting of the contract itself, but their claim is based upon the fact that thereafter, and during the progress of the work carried on by Gildersleeve, water was permitted to accumulate in the excavation made by him, which was thereafter permitted or suffered to percolate or flow into the excavation made by them. lithe plaintiffs had completed their work within the time stipulated, without obtaining extensions, it is quite evident they would not have been damaged. Under the two contracts, plaintiffs’ work was to be finished first—evidently for the purpose of allowing Gilder-sleeve to make the necessary' connections therewith. The fact that Gildersleeve proceeded with his contract and had completed it, or nearly so, within the time stipulated, did not render the city liable because he did not make the connections with the sewer which the plaintiffs were constructing, inasmuch as that was impossible by reason of their not having finished théir work at this point. That the plaintiffs might be injured by water either percolating through the earth or flowing through sewers into their trench before they had completed their work, seems to have been anticipated when the contract was made, for provisions were inserted therein by which the plaintiffs agreed to “do all pumping and do all other work necessary for taking care of the water that may interfere with the operations of construction * * *; ” that “ If, during the progress' of any excavation on the line of this contract, water shall be encountered, it shall be the duty of the contractor, at his own cost and expense, to provide such machinery, pumps, labor, timber and other materials as shall be necessary to maintain such excavation and to. keep it free from water; ” that the plaintiffs “ shall provide for the flow of all sewers, drains and water courses interrupted during the progress of the work; ” that the aqueduct commissioners “ shall have the right to connect any sewer or sewers with the sewers herein described at any time before they are finally completed and “ All loss or damage arising out of the nature of the work to be done under this contract, or from any unforeseen or unusual obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, is to be sustained by the contractor.”

The contract clearly contemplated that the plaintiffs were, at their own expense, to take care of all the water that came into the sewer, whether by percolation or through pipes and sewers. (O'Brien v. Mayor, etc., of New York, 139 N. Y. 543; Burnham v. City of Milwaukee, 100 Wis. 55.) Otherwise, there is no meaning to the words that the plaintiffs should “ provide for the flow of all sewers, drains and water courses,” and that the city should have the right to connect any sewer or sewers * * * ■ at any time ” with the one which the plaintiffs had agreed to build. ' The rights of the parties, therefore, so far as the water in question is concerned, must be determined by the contract itself, and there are no provisions in it which obligated the city to take care of such water or prevent it flowing into plaintiffs’ trench. There was no negligence, as we have seen, in letting the contract to Gildersleeve, and the water which accumulated in the excavation made by him was either a necessary consequence of his work, or else was due to his (an independent contractor’s) negligence, for neither of which the city was liable. (Uppington v. City of New York, 165 N. Y. 222; Berg v. Parsons, 156 id. 109; Engel v. Eureka Club, 137 id. 100; Butler v. Townsend, 126 id. 105; Herrington v. Village of Lansingburgh, 110 id. 145; Devlin v. Smith, 89 id. 470; Kelly v. Mayor, etc., of New York, 11 id. 432; Pack v. Mayor, etc., of New York, 8 id. 222.)

In the Uppington case the court said : “ When, however, the city has power to let the work and it enters into contract with competent contractors, doing an independent business, who agree to furnish the necessary materials and labor and make the entire improvement according to specifications prepared in advance, for a lump sum, or its equivalent, they are not the servants or agents of the city, but are independent contractors, and the city is not liable for their negligence, even when it reserves the right to change, inspect and supervise to the extent necessary to produce the result intended by the contract, provided the plan is reasonably safe, the work is lawful, is not a nuisance when completed and there is no interference therewith by municipal officers, which results in injury.”

The facts in this case, it seems, to me, bring it squarely within the rule thus laid down. Gildersleeve agreed to do the work according to specifications prepared in advance, for a specified sum of money; lío claim is made but what the plans were reasonably safe or but what the work was lawful. It was not a nuisance because it was authorized by law, and there was no interference with his "work by any of the municipal authorities. The plaintiffs’ damage was not caused by any act of the city, and the proof offered failed to establish a cause of action, for which reason the verdict is not sustained by the evidence, and the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide event.

O’Brien, P. J., Patterson, Ingraham: and Hatch, JJ., concurred.

Judgment and order reversed, new trial’ordered, costs to appellant to abide event.  