
    William Jewell, Respondent, v. City of Mount Vernon, Appellant.
    
      When a municipality is not liable for injury caused, by the act of an independent contractor, in diverting surface water into a cellar. .
    
    In an action brought against a city to recover damages for injuries to chattels-stored in the plaintiff’s cellar, in consequence of the alleged negligence of the city in so repairing a street as to divert into his house surface water which naturally flowed in the gutters, it appeared that the repairing was done under a.¡ contract between the city and an independent contractor.
    
      Be Id, that the city was entitled to have the court charge that the city was not, liable for the negligence of the independent contractor, even though it reserved, the right to change, inspect and supervise the work to the extent necessary to-produce the result intended by the contract, provided that the plan for the work Was reasonably safé; that the work was lawful, was not a nuisance when completed, and that there was no interference therewith by municipal officers, which resulted in injury.
    Appeal by the defendant, the City of Mount Vernon, from a. judgment of the County Court of Westchester county in favor of the plaintiff; entered in the office of the clerk of the county of Westchester on the 15th day of April, 1903, upon the verdict of a jury for $770.70, and also from an order entered in said clerk’s office on the 15th day of April, 1903, denying the defendant’s motion for1 a new trial made upon the minutes.
    The rule laid down in Uppington v. City of New York (165 N. Y. 222), which is referred to in the opinion, is as follows: “ 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 serv- " ants 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.”
    
      
      Roger M. Sherman, for the appellant.
    
      Odell D. Tompkins, for the respondent.
   Jenks, J. :

The plaintiff complains that the defendant so negligently repaired a street as to divert surface water, which naturally flowed in the gutters, into his house. He has recovered a judgment for injuries to chattels stored in his cellar. The plaintiff read in evidence a coil-tract for the work which shows that it was done by an independent contractor. The corporation counsel requested the court to charge' that “ the contractor (Light) contracted between him and the city of Mount Vernon for the work at which this accident occurred, Was an independent contractor.” And the learned, court, under exception, replied: I decline to charge that in the sense of being to the ; extent that it relieved the city of liability as already charged.”

But reference to the charge fails to show that the learned court had instructed the jury as to- the liability of the city for its negligence, in view of its employment of the independent contractor. The case was submitted without reference to the element of an independent contractor, save as to the question of notice. I think that under the request the defendant was entitled to have the court charge the rule laid down in Uppington v. City of New York (165 N. Y. 222, 233) for the reason that the municipal liability is thereby limited.

The judgment and order should be reversed, and a new trial ordered, costs to abide the event.

All concurred.

Judgment, and order of the Westchester Oounty Court reversed and new trial ordered, costs to abide the event.  