
    John R. Terry, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
    1. In an action by the owner of leasehold premises, for damages for an injury thereto, without malice, and from a cause which could be ascertained and its continuance prevented at a moderate expense, it is error to estimate the damages at the difference between the value of the lease before and after the injury.
    2. In an action against a municipal corporation for injuries arising from a defect in a building within the corporate limits, their title is not sufficiently proved by evidence of a sign upon it, designating it as “ Primary School Ho. 11,” and that such sign had been on it ten years, and that it was used for a public school during that time.
    3. The Corporation of the City of Hew York are not liable either as the creators or as the continuers of a nuisance resulting from defects in a public school building. The Board of Education, and not the Corporation, are the erectors and custodians of those buildings.
    4. Hor are the corporation, as owners of the Croton aqueduct, liable for injuries which arise from defects in the lateral service pipes inserted by consumers of water in the main street pipes of the aqueduct.
    5. One who suffers injury by a defect in water pipes upon premises adjoining his own, cannot recover damages therefor without evidence of original defects in the pipes, or of want of care in discovering or repairing known defects.
    (Before Robertson and White, J. J.)
    Heard, March 4;
    decided, October 5, 1861.
    Appeal from a judgment entered on the report of a referee.
    The plaintiff in this case was the assignee of a term in certain premises in the Oity of Hew York, which were injured by the flow of water upon them from a neighboring lot, which had on it a building with pipes for furnishing Croton water, which leaked. The damages complained of, consisted of a reduction thereby of the value of the premises in question, expenses in pumping and bailing out the water, the loss of rent and indemnity to a tenant for the untenantability of the premises. The Referee, to whom all the issues were referred to be tried, gave judgment for the plaintiff, awarding $1,400 damages for the expenses in abating the quantity of water, and nearly $3,500 damages for the reduction in value of the premises, based upon the difference between the original purchase money and the proceeds of a sale of them, and a supposed reduction in rent, to which rate of damages exceptions were taken.
    The lease of the premises held by the plaintiff was from Trinity Church, and would expire in March, 1863. The hurtful water appeared in July, 1856, and continued for eight months, when the source of injury was discovered in the leak in the service pipe of a building-two doors off.
    The only evidence of ownership of the building where the defective water pipes were, consisted of the testimony of plaintiff and a Mr. Stump, which was to the effect that it was known and designated as “Primary School Mo. 11,” and had stood there more than ten years; that such designation was on the building, and it was used as a public school during that time.
    Motice was given by the plaintiff to the Croton Aqueduct Department; when the water first appeared, they sent some one to inquire into it. Motice was also given to the Ward School Commissioners.
    The cause was tried before L. W. Goddard, Esq., as Referee, who reported in favor of the plaintiff.
    The only fact found by the Referee, was that the plaintiff as owner of the premises in question, had sustained damages from the want of care of the defendants in the use of Croton water upon certain premises of theirs in their building. Exceptions were duly filed to the report, and after judgment on the report the defendant appealed to the Court at General Term.
    
      Henry H. Anderson, for appellants.
    I. The Referee erred in refusing to dismiss the complaint.
    1. Mo evidence was given connecting the defendants with the premises or property, nor any showing- any obligation or duty resting’ upon them in connection therewith, nor any showing’ negligence on their part.
    II. If defendants be liable, the Referee erred in allowing to the plaintiff the amount of $1,388.91 for money expended, and labor and services, and for loss of rent.
    III. He erred in allowing $3,462.93 for depreciation in value of the premises.
    
      William Ware Peck, for respondents.
    I. Plaintiff was the owner of the premises flooded. The- report finds the fact, and is conclusive. There was no opposing evidence on the point, and the exceptions admit the fact.
    II. The service pipe in question belonged to, and was used with the school premises—the latter belonged to defendants. The report is conclusive as to this, as the evidence is not in conflict. The evidence that the school premises were used for some 10 years as a “ Public School,” designated on the building as “Primary School Wo. 11,” was competent to show ownership in defeudants, as the premises coidd not be used for a “Public School” unless by public authority,
    Mo objection was taken to the competency of the evidence, and not being contradicted, it was sufficient. Again, the fact that the service pipe was repaired by the Croton department, is prima facie evidence that the premises belonged to, and were maintained by defendants, and as one of the Public Schools of the city.
    The School Act of July 3, 1851, has no tendency to exempt them from responsibility, but the reverse. (Davies’ Laws of N. Y. relative to the City of New York, p. 1043, § 2, subd. 1, 8, 9, 11 ; § 3, subd. 1 ; § 6, § 10, subd. 5 ; §§ 14, 15, 16, 19, 25.)
    Defendants own the school property. It .is purchased, used and maintained for defendants and out of its funds.
    The Board of Education could not be sued for the injury in question.
    A judgment against the Board of Education could not be enforced. The Board has no property which an execution could reach, nor any funds which it could apply.
    III. A municipal corporation is liable for the care and management of its property after it has received the works from the contractor, and for defects existing after that time which originated under the contractor, the consequences of which transpire after the reception of the work;—upon the principle of adoption.
    IY. The defendants, as standing in the position of private owners, are responsible for any injury directly resulting from negligence and want of care in the management and use. The law implies that it originates in willfulness or neglect. The Eeferee has found that the injury in question arose from the neglect of the defendants, in the use of the Groton water upon their premises, and the principle of liability for such nuisance applies to the case. (Hay v. Cohoes Company, 2 Comst., 159.)
    Y. Plaintiff was entitled to recover for the damage which directly resulted to him from the nuisance. The Eeferee has strictly adhered to this principle, and the facts found by him upon the subject are conclusive.
   By the Court—Robertson, J.

I think the error committed in the rule of damages adopted by the Eeferee, would be a sufficient cause for sending this case back to a new trial. Injury from a cause which could be ascertained, and the continuance of which could be prevented at a moderate expense, was not to be compensated for by a difference in the value of the lease, which might or might not have originated therefrom, particularly where there was evidently no malice.

But I think an error was committed in holding the defendants liable at all; their active intervention to produce the injury was not established, nor even their ownership of the building. A mere sign on a building, or even the use to which it is applied, much less its reputation, is no evidence that the building was one whose title was required to be in defendants. (2 R. S., 5th ed., p. 154, § 256.)

But even if the title to the land were in the defendants, and the buildings upon it were a public school and its appurtenances, that fact alone would not make them liable, for they have neither the right to erect any such buildings, nor any control over them or any public school property, after they are erected. The care and control of them, or such property, is vested in the Board of Education, and all suits in relation to such property must be brought in their name. (Laws of 1851, p. 727, § 2, subd. 1 ; Laws of 1853, p. 635, §§ 14, 11, amending Laws of 1851, p. 747.) The safe keeping of such property is committed to the ward trustees, (Laws of 1851, p. 740, § 10, subd. 1,) who alone have power to repair and alter it, and have the exclusive'care and management of the school as long as it is used for such purposes. (Laws of 1854, p. 241, § 10, subd. 2, as amended.) The city corporation cannot even sell the land until a majority of the ward school officers and the Board of Education determine that it is no longer to be used for a school house. (Laws of 1851, p. 748, § 27.) They have, therefore, neither the ordinary rights of enjoyment of owners, while they hold the land and it is used for a school house, nor can they control or repair any part of it during that time, or even dispose of it, so as to get rid of all responsibility. They, therefore, cannot be made liable as the continuers of a nuisance.

Uor can the defendants be made liable as the creators of a nuisance. The ward officers procure the sites and erect buildings thereon for public school houses, and the plans of them are to be advertised for and approved by the Board of Education. (Laws of 1851, p. 747, §§ 23, 24.) • The necessary expenditures are to be reported to the supervisors of the county, who are to raise the money and pay it into the city treasury, out of which it is to be again paid to the Board of Education, who disburse it. (Laws of 1851, p. 744, §§ 3, 16, as amended by the Laws of 1854, p. 240, § 3, subd. 1.) The only privilege given to the Common Council is to anticipate, by a loan, the raising of the money by taxation. (Laws of 1851, p. 749, § 28.) The defendauts have not, therefore, by law, any right to select the land or prescribe the kind of building, or determine what fixtures there shall be in it when first erected; they can do nothing except have the title thrust upon them and pay the money required. There certainly can be no presumption, therefore, that they created any nuisance by insufficient water-pipes; nor can the Board of Education or ward officers be considered, in any sense, their agents; all have equally separate duties to perform, for any neglect of which they are responsible. The defendants are but naked trustees without power to intermeddle with the subject of the trust, even to preserve it, much less to prevent any injury to others by its use.

The defendants, therefore, can neither buy nor sell the land on which public schools are built; cannot control their use; and have not the custody of them. They did not erect nor can they repair them or their appurtenances, all of which matters are in the hands of other public bodies. So far as the insertion of any insufficient water pipes in such buildings or the erection of a nuisance on the land is concerned, they are as irresponsible as if the acts causing the injury had been done by a trespasser. The Board of Education and ward school officers are in possession of the land for school purposes, under the statute, for a term coeval with its occupation for a public school, and the defendants would be trespassers if they attempted to eject them or insert or repair water pipes against their consent. They are therefore not liable as the creators or continuers of a nuisance.

It is claimed, however, that the defendants are liable as owners of the Croton Aqueduct, deriving emolument from its use, and the case of Bailey v. The Mayor, &c., of New York, (3 Hill 531 ; S. C., on appeal, 2 Den., 433,) is cited as in point. It must be recollected, however, that the negligence in that case had been practised in the construction of the main works of the aqueduct, and the defendants were made responsible as the owners thereof, and representing those who were to be benefited thereby, but the injury in this case arose from defects in the lateral service pipes; these are inserted in the main street pipes by private individuals at their own cost and risk, to bring the water into their own premises for consumption, and they remain the property of such individuals. In such case the defendants are no more liable for the result of an imperfection in their construction than for those of vessels in which citizens might carry the water from the reservoirs if they were public fountains. The defendants are trustees of the water as an article of public consumption, and are bound to furnish it to all who desire to use it under proper regulations, but they are not bound to supervise the insertion of service pipes or superintend their fabrication, fitting and preservation, except to prevent injury to their works ; the water drawn through private service pipes becomes as much private property as though it had been sold, and the subsequent ill use of it by negligence or otherwise to the injury of another cannot make the defendants liable any more than if they had sold an axe with which trespasses had been committed by cutting timber on another person’s grounds.

But there is not in reality evidence enough in the case to charge any one with the wrong. The use of the Croton water by pipes was legal. Fo one is responsible for injury committed by their breaking, unless caused by negligence or design. If all due diligence is used in making or maintaining the pipes, the injury becomes an unavoidable accident, for which no one is responsible. There was no evidence in this case that the pipes were originally defective. On the contrary, as they were in long before the damage in this particular case, they must have been originally strong. If originally sound, there was no proof of want of care in repairing any known defects or discovering them ; on the contrary, it took six months of close investigation to discover where the leak was, and then they were repaired. Mere results are not proof of want of care. There is no presumption of it even in case of accidents on railways. On this principle, in an action for an injury to a horse by a locomotive engine on a railway, proof that a gate in the enclosure in which he was confined over night was found open in the morning was held no proof of want of care on the owner’s part. (Waldron v. The Rensselaer and Sar. R. R. Co., 8 Barb., 390.) Heglect is not to be presumed any more than fraud, except in cases where the policy of the law places the burden of disproving it upon one party.

For all these reasons the judgment appealed from must be reversed, the order for a reference discharged, and a new trial had, with costs to abide the event.  