
    Daggett v. City of Cohoes.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Municipal Corporations—Defective Sewers.
    In an action for injuries to plaintiff’s premises, caused by the discharge thereon of water and filth from an alleged defective sewer, evidence that when the sewer was built it was connected with another sewer, so that the bottom of one was on the same level with that of the other, and that there were six inches of stagnant water and sand in the old sewer; that a surface well had been constructed, which turned more surface water into the sewer in question than its capacity would warrant, and that the surface well had been removed some time before the trial; that there was an obstruction in the sewer which impeded the flow of the water, and caused an accumulation of solid substance, which obstruction had also been removed before the trial; that plaintiff’s building, which was connected with the sewer, had been injured; and that she had repeatedly complained to the city authorities that water was running into her cellar,—is sufficient to warrant the submission to the jury o£ the question whether the water from the sewer caused the alleged injury to plaintiff’s property, and whether the filth came from the sewer.
    2. Same—Notice op Defects.
    Notice to defendant’s street superintendent and mayor that water was running into plaintiff’s cellar, followed by evidence that the superintendent thought that defendant should clean out the cellar, is sufficient to warrant a finding that defendant had notice of the obstructed condition of the sewer; the court having charged the jury that defendant need exercise only ordinary care to ascertain the existence of the obstruction.
    8. Same—Inadequate Seweb.
    Defendant is liable for the throwing of water and filth on plaintiff’s premises, caused by the construction of a surface well which turned a large amount of surface water that had previously run in other directions into the sewer in question, causing its overflow. Following Siefert v. City of Brooklyn, 4 N. E. Bep. 821.
    4. Same—Damages—Evidence.
    Where plaintiff’s building has been put out of repair by an obstruction in the sewer, she may prove the decreased value of the property owing to its impaired condition; the injury being permanent, and defendant having objected to plaintiff’s offer to prove how much it would cost to restore the building.
    5. Same—Voluntaby Connection with Seweb.
    The fact that plaintiff has voluntarily connected her premises with a public sewer of defendant is no bar to her recovery for injuries caused by defendant’s negligence in permitting it to be out of repair.
    Appeal from circuit court, Albany county.
    This is an action to recover for damages occasioned to plaintiff’s premises by the discharge thereon of water and other contents of a sewer constructed by defendant in Hart street, in the year 1871. This street runs east and west, and the sewer discharges into a sewer in Main street, which street runs north and south. The plaintiff claims that for a part of its length this Hart-Street sewer was without descent. She also claims that, by the construction in 1877 of a surface well or cess-pool at the north-west corner of Congress and Hart streets, a large amount of surface water which had previously run in other directions was turned into the Hart-Street sewer, and was more than its capacity; and that from this cause, among others, plaintiff’s premises, on the south-west corner of those streets, were injured. This surface well was removed in 1884. The plaintiff also claims that an obstruction was in the Hart-Street sewer for a long time, which also caused the discharge on plaintiff’s premises of water and foul contents of that sewer; and that the defendant yvas negligent in not discovering and removing that obstruction until after much injury had been done. The injury claimed is twofold,—an injury to the building by a settling of the walls, and an injury of loss of rent by the deposit of filth on the cellar floor. The cause was tried at circuit, and the jury found a verdict for the plaintiff. Prom the judgment thereon, and the usual order denying a motion for a new trial, the defendant appeals.
    Argued before Learned, P. J., and Landon and Putnam, JJ.
    
      P. P. Niver, for appellant. Doyle & Pitts, for respondent.
   Learned, P. J.

The first point made is that the plaintiff should have been nonsuited. Defendant claims that there is no proof that the water from the sewer caused the alleged injury to the house, and that there is no proof that the filth came from the sewer. There is evidence that when the Hart-Street sewer was built it was connected with the Main-Street sewer, so that the bottom of one was on the same level with that of the other, and also that at that time there were six inches of stagnant water and sand in the Main-Street sewer. There is evidence, also, of the construction of the surface well, and its removal in 1884. It is shown, also, that there was at a certain time an obstruction in the Hart-Street sewer, which arose from the fact that a sewer-pipe from some premises, having been connected at the top instead of the side of the Hart-Street sewer, had dropped in, and had thus obstructed the flow of water, and caused an accumulation of solid substance. This was removed some time in 1884. There is evidence that the superintendent of streets was several times, in 1882 and 1883, notified that the water came into the cellar of the plaintiff’s premises, and that the same notice was given to the mayor of the city once in 1882 or 1883. This was subsequent to the time when plaintiff became owner of the premises. There was evidence given of injury to the building. The defendant claims that this injury was of such a character that it could not be caused by the water which came from the sewer; but it seems to us that this was a question of fact, which the court could not decide. What the exact effect would be of water which came into a cellar is not a matter for a court to determine. Hor could the court decide that the foul substances such as are carried in sewers, and such as were deposited in the cellar, came, as the defendant claims, from the occupants of the house themselves. All these were matters for the jury.

The defendant claims that plaintiff should have been nonsuited because no notice of the obstructed condition of the Hart-Street sewer had been shown. Smith v. Mayor, 66 N. Y. 295. How, it appears that the superintendent and the mayor had received notice of the water in the cellar, and that the superintendent thought that the city ought to clean out the cellar. This indicates that he suspected that the filth in the cellar was due to some defect in the city sewer. Of course, the city is not bound to more than reasonable care. The city could not, without some indication of a defect in the sewers, be expected to dig them up, to examine whether any defect existed; and we think that the charge of the learned judge was in accordance with this view. He only stated that it was the duty of the city to inspect the sewer, as often as might be necessary, to ascertain obstructions, and he had previously explained this point as requiring only such duty as would be consistent with the conduct of a person of ordinary care.

So far as the water and filth were thrown upon plaintiff’s premises by the effect of the surface well bringing water there which would otherwise have flowed elsewhere, this case is within the doctrine of Seifert v. Brooklyn, 101 N. Y 136, 4 N. E. Rep. 321; Noonan v. Albany, 79 N. Y. 475; Byrnes v. Cohoes, 67 N. Y. 204.

The defendant claims that evidence was improperly admitted of the decreased value of the property, owing to the injury done to the building, under the rule in Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. That was an action for a nuisance by an unlawful construction of a railroad in a street. If the railroad were to be removed, the nuisance would cease, and there would be no longer any injury to the plaintiff’s property. But in the present case the plaintiff’s property had been put out of repair. If the city removed the obstruction, still the injury had been done, and the property would continue to be so much less valuable. The plaintiff offered to prove how much it would cost to restore the building, and that was objected to. She then proved the decrease in value owing to the impaired condition.

We are referred by defendant to the case of Kosmak v. Mayor, etc., 6 N. Y. Supp. 453, as an authority to show that, because the plaintiff has voluntarily connected her premises with the public sewer of the city, she cannot recover for the neglect of the city. But that case is entirely different from the present. In that case the plaintiff connected his premises with a private drain, which he knew to be such. He was also informed that the private drain was from property-which had been taken for the Brooklyn bridge, and, further, that if he went in there he went at his own risk, as the city officials knew nothing about it, and had nothing to do with it, (the private dram.) But, further, it will be seen that the defendant had a verdict; and the court had charged that, if the drain in Chatham street (the private drain) was obstructed, the city was not responsible, but that if the obstruction were in the Frankfort-Street sewer (the public sewer with which the private drain connected) then the city was responsible. So that the charge of the court was contrary to the present defendant’s views; and, of course, there was no review of that part of the charge, as it was in plaintiff’s favor, and the plaintiff was appellant. It seems to us, then, that this case "was fairly submitted to the jury, and that there is no ground for reversing the judgment. Judgment and order affirmed, with costs.  