
    ANDREW SMITH, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.
    
      Overflow from sewer ■— when city not liable for.
    
    This action was brought to recover damages sustained by the plaintiff in consequence of water setting back into his basement from a sewer constructed and maintained by the defendant. The overflow occurred on the 4th of July, 1872, and was preceded by a heavy rain, which conveyed so much sand into the sewer as to completely obstruct and prevent the water from passing through it. ■ The evidence did not show it to have been in any manner obstructed before, nor was it improperly constructed or out of repair. Before the sand was washed into it, and after its removal, it appeared to be sufficient to carry off the water flowing into it. • Held, that the defendant was not liable.
    
      Nims v. Mayor, etc., of Troy (3 N. Y. S. C., 5) and McCarthy v. Syracuse (46 N. Y., 194) distinguished.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    
      Henry Parsons, for the appellant.
    
      E. Delafield Smith, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.  