
    WALTER M. HUNT v. THE MAYOR, &c., OF THE CITY OF NEW YORK.
    
      Municipal corporation, e. g. city of New Yorh—Negligence, when not imputable to—Constructive notice to—Latent defect, notice of not presumed. —The American Heating and Power Company.
    
    Negligence is not imputable to a municipal corporation, on account of those defects in its streets which do not arise from their original construction, or are not caused by it or its duly authorized agents, nor on account of an obstruction placed therein by a wrong-doer, without express or constructive notice thereof.
    To constitute constructive notice, the defect or obstruction must be so patent that it can be found out by the corporation by the use of reasonable care and diligence. The law does not presume notice to a municipal corporation, of a latent defect.
    The American Heating and Power Company is not the authorized agent of the city of New York.
    Upon these principles, held, that the city of New York was not liable for an injury resulting from an explosion caused by the ignition of gas which had accumulated and filled a man-hole in one of its streets, which was constructed and owned by the American Heating and Power Company, there being no evidence that it knew, or ought to have known that the street was, or was likely to get, out of repair.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 1, 1885.
    Exception to a dismissal of the complaint ordered to be heard at general term.
    This action was brought to recover compensation for damages which the plaintiff alleges he sustained through the negligence of the defendant. The facts are these : As the plaintiff was passing along Broadway near Maiden Lane, there was an explosion in and under the surface of the street in said Broadway. The explosion was caused by the ignition of gas which had accumulated and filled a “ man-hole,” which was constructed and owned by The American Heating & Power Company, a company authorized to “lay pipes in the city of New York, with the consent of the city and under such reasonable regulations and conditions as it may prescribe” (ch. 317, Laws 1879). This consent was given by the city.
    On the trial, the court dismissed the complaint, and the plaintiff excepting, the court ordered the exception to be heard in the first instance at general term.
    
      E. H. Benn, attorney, and of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. It is the duty of the city to have the streets at all times in a safe condition for travelers (Ehrgott v. Mayor, 96 N. Y. 271 ; Hume v. Mayor, 74 Ib. 264). The steam company could not have laid its pipes in the streets without permission of the city. That permission was given, and the city stipulated for a compensation or' profit therefor. The very fact that the city was to derive a profit from the work made the city hable, the same as if the work had been done by the city itself.
    II. Besides, by the act of 1879, the city was required to prescribe reasonable regulations and conditions under which the work was to be done. Yet, the city did nothing of the kind, and the work was improperly done. Ho regulations or conditions in relation to laying the pipes or doing the work were prescribed by the municipal authorities ; the conditions were simply that the company should furnish a map, give the city a bond to protect the city, and to replace the pavement, allow the city to change the positions of the pipes, furnish the city with steam at its (the city’s) own price, make an annual report, and pay the city three cents for each lineal foot of mains laid, and two per cent, of the net profits. That is not what the statute required, and by this neglect and omission of duty by the municipal authorities the company was allowed to lay the pipes as it pleased, without any restraint or restrictions in regard to the manner, or execution of the work, and the explosion was the consequence. The city is hable for that reason (Wendell v. Mayor, 4 Keyes, 261; Hume v. Mayor, &c., 74 N. Y. 274; Wilson v. City of Watertown, 3 Hun, 508 ; Deyoe v. Village of Saratoga Springs, 3 T. & C. 504 ; Hutson v. Mayor, 9 N. Y. 163).
    
      E. Henry Lacombe, counsel to the corporation, and John J. Townsend, Jr., of counsel for defendants, on the questions considered in the opinion, argued:
    I. No doubt the steam pipes could only be laid in the streets with the consent of the city authorities and “ under such reasonable regulations and conditions as they may prescribe.” Even if the common council did not exercise that legislative discretion in a proper manner, that the city, for such failure, would not be hable, is elementary (Griffin v. Mayor, 9 N. Y. 456).
    II. The laying of the steam pipes was made lawful by the legislature, so that even if the pipes developed into á nuisance, the city would not be hable until it had notice, actual or constructive, of the nuisance. Then again, the cause of this accident, even if strictly speaking, it can be classed as a “ defect in the highway,” was from its subterranean nature singularly “ latent,” and difficult to be anticipated ; and in such case a municipal corporation is not hable without actual or constructive notice (Hart v. City of Brooklyn, 36 Barb. 226 ; McKenna v. Mayor, 47 Super. Ct. 541; Masterson v. Mt. Vernon, 58 N. Y. 391). The plaintiff, however, contends that the city’s habihty is extended beyond the rule laid down above, by reason of the provision of chapter 317 of the laws of 1879. (The counsel here commented on and distinguished the cases of Wendell v. City of Troy, 4 Keyes, 261; Wilson v. City of Watertown, 3 Hun, 508.)
    But the city does not concede that the statute imposed upon it any duty to supervise the actual construction of the steam heating pipes, except so far as to see that the highway was properly cared for." And that this duty was not performed there is no pretense. A mere perusal of the statute fortifies this view of the limited extent of the duty imposed. The statute gives an absolute power to the company to lay the pipes upon obtaining the consent of the municipal authorities, and if it had been intended by the legislature to require the latter to supervise the engineering of the scheme—a novel duty—some such provision would have appeared in the act. That such a duty is novel, see Hume v. Mayor (47 N. Y. 639); McDermott v. City of Kingston (19 Hun, 198).
   By the Court. —Truax, J.

The defendant owes to the public the duty of keeping its streets in a safe condition for the use of travelers, and is liable in a civil action for special injury resulting to one using its streets in the usual manner, from neglect to perform this duty (Ehrgott v. Mayor, 96 N. Y. 264). But before the city can be held to be negligent, on account of a defect in its streets (not arising from their original construction, and not caused by the city, or by its duly authorized agents), or on account of an obstruction placed in its streets by a wrong-doer, either express notice of the existence óf the defect or obstruction that was the cause of the injury, must be brought home to the defendant, or such defect or obstruction must be so patent that the defendant could have found it out if he had used reasonable care and diligence (Mayor, &c. v. Sheffield, 3 Wall. 195 ; Griffin v. Mayor, 9 N. Y. 456; McGinity v. Mayor, 5 Duer, 674 ; Smith v. Mayor, 66 N. Y. 295). It therefore follows that the defendant can be held only for the damage sustained by the plaintiff through the neglect of the defendant, either in laying the pipes, or in keeping the street in proper repair after the pipes had been laid. The defendant was not negligent for the manner in which the pipes were laid, because they were not laid by the defendant or its authorized agents (Griffin v. Mayor, 9 N. Y. 461); nor was it negligent for not keeping its streets in repair, because there is no evidence that the defendant knew, or ought to have known, that the street was out of repair, or was likely to get out of repair (McKenna v. Mayor, 49 Super. Ct. 541; Masterton v. Mt. Vernon, 58 N. Y. 391). We cannot presume that the defendant had notice of a latent defect in the street, when the defect was not made by it or under its direction, for the law does not require the authorities of the city to be experts, skilled in mechanics and architecture, but requires of them only reasonable intelligence and ordinary care and prudence (Hart v. City of Brooklyn, 36 Barb. 226 ; Hume v. Mayor, 47 N. Y. 639 ; S. C., 74 N. Y. 264).

The plaintiff’s exception is overruled, and judgment is ordered for the defendants, with costs.

Sedgwick, Oh. J., and Freedman,-J., concurred.  