
    Henry B. Nims, Respondent, v. The Mayor, Aldermen and Commonalty of the City of Troy, Appellants.
    (Argued December 16, 1874;
    decided January 19, 1875.)
    A. sewer in the city of T., huilt by the owners of land through which it passed, and by the city where it passed through its streets and alleys, passed through the premises of plaintiff and emptied into the H. river. Another sewer, built by the city, was connected with it. One T. petitioned the common council for leave to enlarge the opening between the sewers; this was referred to a committee with power. The city commissioner, whose duty it was to look after and inspect sewers, authorized the change to be made. In doing the work T. built a wall across the sewer first mentioned, partially obstructing the outlet and diminishing the capacity of the sewer, by reason whereof it became clogged and filled up, and a storm occurring the accumulated water burst open the sewer upon plaintiff’s premises, causing damage. T. presented' his hill for the work to the common council, which was audited and paid. Held, that the city was chargeable with notice of the obstruction, and was liable for the damages resulting therefrom.
    An unfinished house upon plaintiff’s premises, which was being built under contract, was injured. Held, that plaintiff was entitled to recover therefor; that even if the contractor was bound by his contract to deliver a completed house notwithstanding such an injury, this did not affect the right.
    Also held, that it was proper to allow plaintiff the rental value of the building for the time he was deprived of its use in consequence of the injuries.
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, modifying and affirming as modified a judgment in favor of plaintiff entered on the report of a referee. (Reported below, 3 N. T. S. O. [T. & C.], 5.)
    This action was brought to recover damages claimed to have been sustained by plaintiff in consequence of the bursting of a sewer on his premises.
    The referee found substantially the following facts:
    That there was a sewer in the city of Troy, known as “ the crooked sewer,” which commenced at a point near Ninth street, and run to the Hudson river, at a point at the foot of Jacob street, in said city. That the said sewer had been constructed over a natural stream of water flowing through a ravine leading from a body of water known as College pond. Tli at the said sewer, so far as the same run through the streets and alleys of the said city, had been constructed by the defendant, and that where it crossed the lands of private individuals, it had been built from time to time by the respective proprietors. That about the year 1860, the defendant constructed a sewer in Federal street, in said city, from the Hudson river, at the foot of Federal street, to a point within a few feet of the said “ crooked sewer,” and connected it with said “crooked sewer” by a small wooden chute or trunk. That the said “ crooked sewer ” passed through a lot in said city, owned by the plaintiff. That about the 20th of October, 1861, one Charles Tesón obtained permission from the common council of defendant to open the said crooked sewer in Federal street, for the purpose of enlarging the opening or trunk leading from it to the said Federal street sewer. That said Tesón received his authority to make said opening and alteration directly from one James Bolton, who at that time held the office of city commissioner of said city. That Tesón, within a few days thereafter, enlarged the opening between the sewers, and at the same time caused to be built across the “ crooked sewer,” a wall just below the point where the trunk tapped said sewer, closing and obstructing said sewer, and leaving only a small aperture in said wall, greatly reducing the capacity of the crooked sewer. That thereafter the said Tesón presented a bill to the common council, for his services and disbursements in performing the alterations above mentioned, which bill was audited and was subsequently paid by the disbursing officer of the defendant. That by reason of the building of the wall, the sewer became at that point nearly filled with debris, and that the trunk connecting with the Federal street sewer also became obstructed. That about the 27th day of June, 1866, occurred a heavy and extraordinary fall of rain, and by reason of the wall, and the accumulation of debris caused by that obstruction, the said sewer was incapable of receiving and discharging the water that accumulated in the ravine at the head of the sewer, and by reason of the pressure occasioned thereby upon the sewer, it broke at.a point on the lands of the plaintiff. That the water washed away large quantities of earth, and undermined the south wall of the plaintiff’s house, standing on the said premises, and caused damage to the house and premises to the amount of $8,360.74. As items of damages, the referee allowed loss of use and occupation, repairs, regrading lot, paving and regrading, new sewerage, miscellaneous repairs. As conclusions of law, the referee found that the defendant was-chargeable with notice of the existence of the obstructions in the sewer, and was liable for the damages.
    Upon the settlement of the case, the referee made the following additional findings:
    That on or about October 20, 1864, the said Charles Tesón did present a petition to the common council asking leave to-enlarge the chute or trunk which connected the crooked sewer with the Federal street sewer, and that the only action taken by the common council on such petition, as appears from their minutes produced in evidence, was contained in the order, which reads as follows:
    “ Petition, offered by Alderman Morris, of Charles Tesón, to have an opening made in Federal street sewer, corner of' North Fourth street, referred to committee on sewers with power.”
    That no other or different direction on the subject was-given by the common council. That there was no evidence that said committee on sewerso conferred together on the subject of said petition, or the granting permission to said Tesón, or made any report on the subject to,the common council. That the said Charles Tesón never asked any permission of' the common council to build any wall across the said crooked sewer, nor to make any other obstruction to the sewer, and that no such permission has ever been given by said common, council, or by any officer of the city of Troy, to said Tesón. That it does not appear from the evidence that the then city commissioner, James Bolton, ever knew that said Tesón intended to build said wall across the crooked sewer, or that he gave said Tesón permission to do so. That immediately after the wall had been built by Tesón, the sewer was by him covered up with earth to the depth of about five or six feet; that there is no evidence that either the city of Troy, or any of its departments or officers, had any knowledge or actual notice of the existence of the wall across said crooked sewer until after the injury complained of had happened. That the enlargement of the chute or trunk by said Tesón would have increased the capacity of the crooked sewer for the passage of water through it but for the construction of the cross-wall before mentioned. That the application to the common council, by Tesón, for compensation, which was allowed and paid, purported, by its terms, to have been for enlarging the chute, and that there was no evidence that the common council was thereby or otherwise informed that the crooked sewer had been obstructed by the said wall. That at the time of the injury the plaintiff’s house was in process of construction under two contracts in writing; and at the time of the injury neither contract had been completed by the contractors, and the house had not, nor had any part thereof, been delivered to or accepted by the plaintiff.
    
      R. A. Parmenter for the appellants.
    The liabilities of cities to private persons for injuries of the character complained of) arise from the performance or non-performance of some ministerial act. (Wilson v. Mayor of N. Y., 1 Den., 595 ; Cole v. Trustees of Medina, 27 Barb., 218 ; Kavanagh v. City of Brooklyn, 38 id., 232; Mills v. City of Brooklyn, 32 N. Y., 489 ; Hines v. City of Lookport, 50 id., 236; Dil. on M. Corp., §§ 799-802; Carr v. North Liberties, 35 Penn. St., 324; Grant v. Erie, 69 id., 420; Childs. Boston, 4 Al., 41.) The city is not responsible for the wrongful and unauthorized act of Tesón in obstructing the sewer by the cross-wall. (Rcqua v. City of Rochester, 45 N. Y., 135 ; Hume v. Mayor of N. Y., 47 id., 639 ; Griffin v. Mayor of N. Y., 5 
      Seld., 458-461; 3 Daly, 147; Dillon, §§ 767,789,790; Sprague v. Wooster, 13 Gray, 193.) In case of an obstruction caused by the elements, which produces an injury, a corporation will not be liable unless neglect is shown, after knowledge on its part of the obstruction. (Shepherd v. Inhab. Chelsea, 4 Al., 113; Stanton v. City Springfield, 12 id., 566; Smith v. City Lowell, 6 id., 39; Rowell v. City Lowell, 7 Gray 100, 104; Dillon, § 797.) Bolton had no authority over the sewers, and could not delegate any to Tesón. (Dillon, note to § 176.)
    
      Esek Cowen for the respondent.
    The city was responsible for the condition of the sewer, and is liable for the damages suffered by plaintiff. (White Lead Co. v. Rochester, 3 N. Y., 463; Requa v. Rochester, 45 id., 129; Barton v. Syracuse, 36 id., 54; McCarthy v. Syracuse, 46 id., 194; Wendell v. City of Troy, 4 Keyes, 272.)
   Allen, J.

The discrepancies alleged by the appellants between the general report of the referee and his special findings in response" to the requests of the counsel for the defendants, are seeming rather than real. There is in truth nothing in the special findings inconsistent with the material facts embodied in the original report upon which the recovery was had and judgment given; certainly nothing to overthrow or detract from the force and effect of those facts as found and reported. Both parties allege, what is clearly proved and found by the referee, that the sewer known as crooked sewer,” passing through and across the plaintiff’s premises, constituted the channel and outlet of a natural stream having its source in College pond.”

This sewer was constructed for a part of the distance, including the portion upon the plaintiff’s premises, through a deep ravine and had been built by the respective owners of the lands over and through which it passed, and by the city of Troy under and through the public streets and alleys of the city, occurring in its course. This crooked sewer ” after it left the premises of the plaintiff, crossed Federal street and several other streets of the city, and passed through a part of Jacob street to the Hudson river at the foot of the latter street.

Up to the time of the obstructions caused by the alterations of the “ crooked sewer ” at Federal street in 1864, it had answered the purposes for which it was built, and had proved sufficient to carry off the water seeking a channel through it, and it is to" he inferred from all the evidence, as is substantially found by the referee, that but for the alterations and obstructions referred to it would have proved sufficient at the time of the rainfall, resulting in the injury which is the subject of this litigation. Prior to 3864 the defendants had caused a sewer to he built from the Hudson river through Federal street to a point a short distance from crooked sewer ” at its point of crossing that street, and had connected the two sewers by a small chute, but without obstructing or in any way diminishing the capacity of crooked sewer ” in its further passage to the river. The resolution of the common council of the city, under which Federal street sewer was constructed, was for the construction of a sewer to connect with the sewer that crossed Federal street near the foot of the hill east of Forth Fourth street, which was the so called crooked sewer,” with the necessary outlets, etc.

In 1864, one Tesón made an alteration in the connection between crooked sewer ” and Federal street sewer,” enlarging the chute or opening for the passage of the water from the former to the latter, and at the same time built a wail across crooked sewer,” nearly closing it below Federal street, so as to turn it substantially into the Federal street sewer, greatly diminishing the outlet, and the capacity of the sewer. By reason of this obstruction and change, “ crooked sewer” became greatly clogged, and filled up, by the collection of rubbish, dirt and debris, at the junction of it with the other sewer, and the result was that, in a very sudden and unusual rainfall, in June, 1866, the water accumulated to so great an extent as to break away the sewer on the plaintiff’s premises, overflowing them, and greatly damaging his dwelling-house, in process of erection and nearly completed, and causing damage to the plaintiff in other respects. There is no controversy as to the facts thus far stated. The questions in respect to which the learned counsel for the respective parties differ, and upon which the case, as now presented, necessarily hinges, is as to the action of the city government and the city officials in respect to the doings of Tesón, and the legal results of such action as affecting the liability of the municipality.

The referee has found that Tesón had permission from the common council of the city, and an authority directly from the city commissioner, to open crooked sewer ” in Federal street, and enlarge the trunk leading from it to the Federal street sewer; and that, at the time he made such opening and enlarged the trunk connecting the two sewers, he built the wall in crooked sewer,” obstructing the passage of water in it and turning it into the other sewer; and that subsequently the common council audited his claim for services and disbursements in making the alterations, and ordered the same paid, and that the same was paid by the disbursing officer of the defendant. In his report and judgment, the referee charges the defendant with the loss and damage sustained by the plaintiff, upon the ground that the defendant was chargeable with notice of the existence of the obstructions in the sewer. The evidence justified, I think, the conclusions of the referee upon the question. There was no direct evidence of permission, by formal resolution of the common council, to Tesón to make the changes in the connections between the two sewers, but there was evidence of an application, by petition, for the permission, and that the petition was referred to the committee on sewers, with power; and although it was not proved that the committee formally met and acted on the subject-matter of'the petition, it was proved that the city commissioner for that year, whose duty it was to look after and inspect sewers already built, authorized the changes to be made, and that the city subsequently paid for the work. The proof was by Mr. Tesón, although the fact is not found by the referee, that .the petition presented by him to the common council was to “ change the opening, and turn the surplus water from the stone sewer —the old sewer — into the Federal street sewer.” It is clearly to be inferred from this evidence that the city government, by its official representative, had full notice of all that was done by Tesón, and the manner in which the changes had been made, and the means taken to turn the sewerage from the old sewer into the new, or Federal street sewer, even if it was not expressly authorized to be done in advance of the changes actually made. A payment for the work implies' a knowledge of what was done and is an adoption of the entire action of Tesón, and the fact that Bolton, the city commissioner, authorized the work to be done, authorizes the presumption that he performed his duty and supervised and watched the progress of the work while being done, and the restoration of the street to its former condition. I incline to the opinion that the evidence would have fully sustained a judgment against the defendant, on the ground that the work was so authorized by the city authorities as to make Tesón the agent of the city, for whose acts and neglects, in the performance of the work, the city was liable. But the legal result is the same, it] as the referee has found, the city is chargeable with notice of the existence of the obstructions. The entertaining the application by Tesón, and its reference to a committee, with, a delegation of power to grant the permission asked, was a recognition of the legal control of the sewer by the city government, and the payment for the work done and materials supplied in accomplishing the work, was a recognition of legal obligation of the city to maintain the sewer and keep it in proper condition. These facts, in connection with the proved action of the city officials, satisfactorily bring home to the city authorities notice and knowledge of the whole change wrought by Tesón in the structure and capacity of the sewers. It is no answer to say that the common council could • not delegate to a committee the power to act definitely upon the petition of Tesón, and to change or authorize a change in the sewers, or that the city commissioner had no power to-give authority to make the changes. It is not a question of power, or whether the acts were ultra vvres, but one of notice. If the city government, or the officials of the city charged with the care of the sewers, had notice of the changes and consequent obstructions or liability to obstructions, and neglected to keep them properly open and in suitable condition; and loss and damage came to individuals by reason of such neglect, the city must respond, although the changes were made and the obstructions caused by wrong-doers, and without authqrity. I think the evidence authorized a finding of actual notice to the city commissioner and the common council; but, if not, facts were proved which made it their duty to learn what had been done, and this, in the language of the referee, renders the defendant chargeable with notice of the existence of the obstructions.

The sewer, at the point of the obstruction, as well as the whole sewer, into which the waters were directed by the changes made in 1864, were constructed by the city of Troy, and of the proper dimensions, and but for the alterations made and the obstructions suffered to accumulate by reason of such alterations, no harm would have come to any one. Whatever may have been the original obligation or duty of the city in respect to providing sewage, and a proper channel for the passage of the water that found its way into the old or crooked sewer,” having undertaken the building of the sewer it was its duty to keep it in proper repair, and it is liable for any neglect in its proper maintenance, or for any changes or alterations made by the city or its authority or with the knowledge of the city officials,-in its structure, by means of which the waters are obstructed in their passage and damage ensues to others. This was ruled in Rochester White Lead Co. v. City of Rochester (3 Comst., 463); Barton v. City of Syracuse (37 Barb., 292; affirmed, 36 N. Y., 54) ; Mc Carthy v. Same (46 id., 194); Hines v. City of Lockport (50 id., 236); and see Dillon on Municipal Corporations, section 802, and cases cited in notes; Mayor v. Furze (3 Hill., 612). This principle is approved in Mills v. City of Brooklyn (32 N. Y., 489), and that case distinguished from those cited, and others holding the same doctrine.

There was no valid objections to a recovery by the plaintiff for the injuries to the dwelling-house. It was a part of the realty and the property of the plaintiff. The fact that it was built by contract and was not completed, did not detract from his right to the house as it was, or to recover for its destruction. A recovery by him would bar an action by the contractors even if it be conceded they would have a remedy against the defendant. Whether an action would lie at their suit may be very doubtful. It would depend upon their liability to the plaintiff and their obligation to deliver to him a completed house notwithstanding the destruction of the partially completed building, by the falling in of the sewer on the plaintiff’s own premises, and without fault on their part. This liability would not probably be readily acquiesced in by the contractors, and it might be difficult to establish it by action. But no legal objection exists to a recovery by the plaintiff for that which was clearly his, although he might have an action against a third person who in turn would have a remedy over against the city.

It was proper to allow to the plaintiff the rental value of the house for the time during which he was deprived of its use by reason of the injuries to it, and there appears to be no good objection to the allowance of the other items for which the recovery was had. As modified by the Supreme Court, the judgment should be affirmed.

All concur.

Judgment affirmed.  