
    John J. Snell, Resp’t, v. The Rochester Railway Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Negligence—Street railroad—Sure ace drain between tracks.
    Plaintiff's horse was injured by a fall caused by his stepping into a depression between the rails of one of defendant’s tracks, at the bottom of which was the grated opening to a sewer drain. It was stipulated ou the trial that the surface drain, grate and depression were constructed by the city several years before, and had remained in substantially the same condition. Held, that the defect was not one of repair, but of construction, for* which the city was alone responsible, and which defendant had no authority to remedy, and that it was not liable.
    Appeal by the defendant from a judgment of the county court of Monroe county, affirming a judgment of the municipal court of Eochester.
    
      F. W Smith, for app’lt: H. J. Sullivan, for resp’t.
   Dwight, P. J.

The action was to recover for injuries to a horse, the result of a fall caused by his stepping into a depression in the pavement of North St. Paul street in Rochester, between the rails of one of the tracks of the defendant’s road. At the 'bottom of the depression there was the grated opening of a lateral drain leading to a sewer, and the whole arrangement was for the purpose of receiving and carrying off the surface water from a low place in the street. After the trial the parties entered into a stipulation which was incorporated into the return on appeal of the municipal court to the county court, as follows: “ It is hereby stipulated that the evidence given on the trial of the above entitled action established the fact that the surface drain, the grate over the opening of the same and the depression between the rails of the street car track, * * * where the accident herein complained of occurred, were constructed by the city of Rochester several years before the accident occurred, and that said drain, grate and depression have remained in substantially the same condition from the time they were constructed down to June 20, 1890,” which was the date of the accident.

We regard this stipulation as fatal to the plaintiff’s cause of action against the defendant, and, consequently, to the judgment from which this appeal is taken. By that stipulation it conclusively appears that the defect in the street, complained of, was not the result of the use of the street by the defendant, nor of any act on its part, nor of the omission of any duty which it owed to the public. It was a defect not of repair, but of construction, for which .the city alone was responsible, and which it was neither the duty nor the privilege of the defendant to remedy. The duty laid upon the defendant by the statute in such case made and provided was “to have and keep ” the space between and beside its rails and tracks “ in permanent repair.” Laws of 1884, chap. 252, § 9. It had no authority to change the location or dimensions of the opening of the drain, nor the depth or slope of the sides of the depression connected with such opening, all of which had been determined upon by the proper authorities of the city, and constructed by the city itself in accordance with such determination. As we have said, the defendant not only owed no duty to the public to improve the construction of the street determined upon and carried out by the citjq but it had no authority to do so, even for its own benefit; and the evidence in the case discloses the fact that the defendant and its predecessor in the franchise had always been subjected to considerable inconvenience by reason of the faulty construction in question, which they had no authority, in themselves, to remedy. None of the cases cited by counsel for the plaintiff seem to us to support their contention, nor do we see how it can be supported on principle, in view of the facts established by the stipulation found in the case.

The judgment of the county court and of the municipal court of Rochester should be reversed.

Judgment of the county court of Monroe county and of the municipal court of Rochester reversed, with costs.

Macomber and Lewis, JJ, concur.  