
    Raphael Lewenthal vs. The Mayor &c. of the City of New York.
    An action will lie against the corporation of the city of New York to recover the damages sustained by an individual 'by the bursting or overflowing of a sewer, built under the direction of such corporation, and made of insufficient size and capacity to carry off the water; where the injury done was the direct consequence of the imperfect and insufficient construction of the sewer, of which the corporation had repeated notice.
    There is no obligation to build a sewer, but a city corporation having determined to do so, a duty is imposed upon it to build one sufficiently large and so constructed as to carry off the water, and not to throw it, by means of*' the sewer, on- the adjoining property.
    The case of Müls v. The City of Brooklyn, (32 N. T. 489,) commented on, and distinguished.
    Under section 5, of the act of the legislature of April 19, 1871, (<S«. laws, oh. 583,) which provides that no judgment, save on issues of law, shall be entered up, thereafter, against the city or county of New York, except upon the verdict of a jury, a judgment cannot be-entered upon the report of a referee made subsequent to the passage of such act.
    Until the report of a referee is confirmed, and judgment entered thereon, the plaintiff obtains no vested right thereunder. Until then, it is subject to the power of the court, and to any law the legislature may think proper to pass, affecting the remedy.
    • The 5th section of the act of April 19,1871, is not unconstitutional.
    OR the 8th of August, 1868, the cellar of the plaintiff’s house in Eighth avenue, near Thirty-fourth street, in the city of New York, was overflowed by water flowing therein from the street sewer, through the sewer connection, and damages were thereby sustained in the sum of $2032.28. To recover the damages so sustained,the plaintiff brought this action, alleging that the sewer in question, by reason of carelessness and unskillfulness of the defendants in constructing the same, was and is of insufficient size and capacity to carry off the water and refuse which it was and is intended to do.” And is utterly insufficient and unfit to perform the work for which it was constructed.” The testimony of the plaintiff showed that the overflow happened when there was a very heavy shower of rain. That the water came in through the pipe connecting with the sewer. That the overflow from the sewer occurs only after a heavy, sudden shower; that a long steady rain does not produce any overflow; that it had done so for many years prior to the occurrence in question. The testimony of Mr. Weston, an engineer, a witness in behalf of the plaintiff, showed that he had examined the sewer in question; that in his opinion, if the crown of the sewer was raised in certain places, and the bottom filled WP at other places, and the grade of the sewer thus reformed, the discharging capacity thereof would be increased sufficiently to prevent such overflows. That, in his opinion, this sewer varies from the grade it ought to have. That the alterations recommended by him were never made. Mr. Weston also testified that if the sewer connection had been made of cast iron pipe, with a valve closing against pressure from within, at the orifice in the plaintiff’s cellar, no'.overflow could have happened. The witnesses introduced on the part of the defendant established, 1. That the sewer in question had not been cleaned or reconstructed since 1868, and that it is now in perfect and efficient condition. 2. That the present actual grade of the sewer, as shown by a survey thereof, is the grade required for the same by the official profile..
    The action was referred to a referee, to hear and determine, on the 28th of November, 1870. 'On the trial before him, the defendants moved to dismiss the complaint, at the close of the plaintiff’s testimony, and at the close of the case, which motions were denied and exceptions taken thereto.
    The referee reported in favor of the plaintiff. He found, among other things, as matter of fact, that the damage sustained by the plaintiff was the direct consequence of the imperfect and insufficient construction of the sewer; and as matter of law, that the defendants were responsible for damage so occasioned; to which findings the defendants duly excepted.
    On the 28th of August, 1871, the plaintiff" moved for leave to enter judgment on the report. The defendant opposed the motion, upon the ground that the entry of such judgment is prohibited by the statute passed April 19, 1871, (Laws of 1871, oh. 583,) which took effect on that day, and which provides that “ no judgment, excepting on issues of law, shall be entered up hereafter against the city or county of New York, except upon a verdict by a jury.” By direction of his honor Justice Sutherland, judgment -was entered on the report on the 15th of September, 1871, and from such judgment the defendants appealed.
    
      Richard O'Gorman, for the appellants.
    I. The judgment should be reversed, because the court had no jurisdiction or power to grant such judgment on the report of a referee, after the 19th day of April, 1871. (a.) The statute cited plainly comprehends within its prohibition pending suits. It leaves nothing doubtful or ambiguous when it says “ no judgment shall hereafter be entered up,” &c. The learned justice below was therefore in error when he said, “ every well settled rule of statutory construction forbids a construction of the statute that would make it apply to the plaintiff’s case.” It.is the province of the court, by construction, to define obscure, doubtful or ambiguous words of a statute. But the court will not, under the guise of construction; nullify provisions that are clear and unambiguous, or substitute other provisions therefor. The language of this enactment leaves no room for construction; it is a clear, positive and unequivocal prohibition, which no “ construction” can reconcile with the entry of the judgment herein. If the statute be valid, the judgment is invalid. (5.) The statute-in question is not obnoxious to any constitutional objection. It affects only the remedy of the plaintiff' not his right. Such statutes have repeatedly been adjudged valid, even when they have had the effect of destroying remedies existing at the time of bringing suit, or the mode of enforcing judgment after the rendition thereof. In Morse v. Goold, (11 N. Y. 281.) an act which prevented the levying of an execution upon property which would have been liable thereto at the time the judgment was recovered, was held to be valid. The Court of Appeals said that the act did not impair the contract, or affect a vested right; it only modiffed the remedy. In Palmer’s case, (40 N. Y. 561,) the Court of Appeals held that a statute providing that certain appeals should not thereafter be “ had or. heard” was valid, and prevented the hearing of such appeals taken previous to the passage of the act. The statute under consideration does not.-even affect, the remedy as in the instances cited. Eo portion of the plaintiff’s relief, or means of enforcement, is denied to him; the process of administration only is changed. The mode of proceeding only is affected; the plaintiff may have his judgment if he is entitled thereto, but only by the process of a jury trial. So far, the process of enforcing his remedy is modified by the statute. In The People v. Tibbetts, (4 Cowen, 385,) it was held that a statute which altered the mode of proceeding in a suit pending when it was passed, was constitutional. The following" cases distinctly assert the right of the legislature to modify remedies: Van Rensselaer v. Snyder, (13 N. Y. 299.) Conkey v. Hart, 14 id. 22.) Van Rensselaer v. Ball, (19 id. 100.) Stocking v. Hunt, (3 Denio, 274.) Morse v. Goold, (11 N. Y. 281.) Sullivan v. Brewster, (1 E. D. Smith, 681.) Waltermire v. Westover, (14 N. Y. 16; 20 id. 247 ; 23 id. 275.) (c.) Ho retrospective effect is claimed for the statute; it is purely prospective, applying to all judgments thereafter entered up. The- statute clearly -expresses the intention to embrace all judgments thereafter entered up, and therefore will not be limited to cases thereafter arising. The rule is, that a statute will be held to embrace only cases thereafter arising, unless the intention to embrace all is une-0 quivocally expressed. (Dash v. Van Kleeck, 7 John. 477.) (d.) The statute is not in conflict with section 16 of article 3 of the State constitution, which provides that no local bill shall embrace more than pne subject, and that shall be expressed in its title. The title of the act is, “ An act to make provision for the local government of the city and county of Hew York.” This title is sufficient to include " within its scope the section in question. Any enactment affecting the duties, rights, liabilities or privileges of the corporation, may properly be embodied in an act to make provision for the government thereof. The constitution does not require that the title of a local bill shall contain a catalogue of its contents. It- only requires that the bill bear a title which shall indicate the general purpose of the provisions contained therein. (Sun Mu. Ins: Co. v. The Mayor, 8 N. Y. 241.) 2. But although the act in question, so far as it provides for the local government of the city and county of Hew York, is a “ local ” bill, it' may contain an enactment neither local nor private. Therefore, whether section 5 is a local or general statute, is the question, and not whether the act is local in its principal provisions. The section in question is essentially a public statute, within the definition thereof by Denio, J., in Williams v. The People, (24 N. Y. 405.) He says: “An enactment wMch_ prescribes the rule of conduct for all persons, whether residents in the city or in other portions of the State,” is a public statute and is not a private statute, because incorporated in an act containing local provisions. In The People v. McCann, (16 N. Y. 58,) it is held that an act, local in most of its provisions, may contain a section which is public in its character; and such a provision inserted in a local act, and not comprehended within the title thereof, does not render the act unconstitutional, or the provision invalid. In Bretz v. The Mayor, Abb., N. S., 258,) a general provision in relation to suits against the city of Hew York, contained in the tax levy act of 1867, was held valid, in despite of objection similar to'that urged in the case at bar. In Oakley v. The Mayor, Judge Spencer, in the Superior Court, has recently held the provision under discussion to be valid, as has also Justice Larremore, of the common pleas, in the case of Fitzpatrick v. The Mayor &c. The provision in question, therefore, being public and general in its nature, is not within the purview of section 16, of article 3 of the constitution, or subject to the restrictions thereof. (The People v. McCann, supra.)
    
    II. The exception to the refusal of the referee to dismiss the complaint is well taken, (a.) The testimony of the plaintiff, and his witness, Quackenbush, tends strongly to prove the fact which is made certain by the testimony of Mr. Weston, that the overflow from the sewer was caused by the in sufficient discharging capacity thereof. They say that the overflow occurred only when there was a sudden heavy rain, such as this summer shower of the 8th of August was. That a long and steady rain did not cause an overflow. Mr. Weston, an accomplished engineer, more clearly reveals the cause of the insufliciency. He shows that, in his opinion, a change or reformation of the grade of the sewer is necessary, in order to accelerate the flow of the' water therein, and thus increase the discharging capacity thereof. It is not shown that there is any imperfection or unskillfulness in the work of constructing the sewer, or that it is or was in any way out of order. On the contrary, the testimony of the defendant’s witnesses shows, by actual survey, that the sewer is and was in.perfect and efficient condition, in good order, and constructed according to the profile thereof, and upon the grade required by that profile. It is therefore clear that the insufficient capacity of the sewer is an incident and consequence resulting from the plan and grade devised therefor, and not from any negligence or unskillfulness in building the same, or from any neglect to keep the same in order. A municipal corporation is not responsible in a private action for failure to" provide sufficient sewerage. The duty of devising and constructing sewers, is one involving the exercise of discretionary powers. The corporate officers are clothed with a power which is not merely ministerial. It involves the determination of questions as to the size of sewers, location, grade, &c., which are committed to their discretion, and as to which their functions are quasi judicial. If, by reason of their errors in devising plans and grades, the" work when done is insufficient to accomplish the object designed, and injury thereby occurs, the injured person has no redress by action; it is damnum absque injuria. The officer Who corruptly exercises his discretionary power, may be indicted and punished, but the law gives no redress by action for the individual wrong done. In Mills v. City of Brooklyn, (32 N. Y. 489,) a case which was in every essential feature similar to the case at bar, the doctrine of municipal liability in such action is very fully discussed, and the cases on that subject reviewed, by Denio, J. The distinction is there plainly drawn between" ministerial and judicial duties. He says: “It would require a degree of wisdom and foresight not usually met with in public officers, to adjust and apply the expenditures for public purposes, so perfectly that no deficiency or redundancy would ever be found to exist. “It is a wise provision of the law, that an action for damages does not lie for such errors of judgment on the part of the agents of the public.” The cases of The Mayor v. Furze, (3 Hill, 612;) Rochester White Lead Co. v. City of Rochester, (3 Comst. 463;) Barton v. Syracuse, (37 Barb. 292;) Hutson v. The Mayor, (5 Seld. 163;) Conrad v. Ithaca, (16 N. Y. 158;) West v. Trustees of Lockport, and Lacour v. The Mayor, (3 Duer, 406,) are reviewed, and the learned judge says: “These are all cases where the injury was either the result of suffering a municipal work to be out of repair, or where the defendants had done acts 'which were in themselves positive nuisances. They furnish no. ground for holding a municipal corporation responsible for not providing suitable sewerage) whether the negléct was total or partial only, arising from the insufficiency of a sewer to discharge all the water which it was intended to carry off.” Therefore, under the testimony in this case, showing that the insufficiency of the sewer was occasioned by the grade thereof,' upon which the corporate officials, exercising their discretion, had deemed best to construct .it, the plaintiff is not entitled to recover. (Wilson v. The Mayor, 1 Denio, 595. Cole v. Medina, 27 Barb. 218. Kavanaghv. Brooklyn, 38 Barb. 232. Hutson v. The Mayor, 5 Seld. 163.)
    HI. The' evidence of the plaintiff shows that the liability to overflow from the sewer was well known to him; that he had suffered from the same cause on former occasions. He should thererefore havé taken such precautions as would have secured him from injury, and failure on his part to take such precautions, is negligence, which, contributing to the injury, will preclude him from recovery. Wilds v. Hudson River R. R. Co., 24 N. Y. 430.) The gist of this action is the alleged negligence of the defendant in- constructing an imperfect sewer. But .in order to entitle the plaintiff to recover, two facts must concur: 1. The defendant must have been guilty of negligence. 2. The plaintiff must be entirely free from any degree of negligence which contributed to the- injury. Each and both these facts must appear by the evidence, or there can be no recovery. The law says to the plaintiff although the defendant has been negligent, yet if you have, by your negligence, helped to bring about the injury, you cannot prevail. (Johnson v. Hudson River R. R., 20 N. Y. 73. Steves v. Oswego and Syracuse R. R. 18 id. 422. Wilds v. Hudson River R. R., supra.) It is in evidence that, by a simple and well-known device, he could have so secured the sewer connection that no water could flow into his cellar therefrom, and the injury complained of could not have happened. It is no answer to this suggestion, to say that it is not usual for sewerage connections to be made in the manner described; usually there is no necessity for such precautions. But the defendant’s experience in 1867 was sufficient to convince him of the necessity of taking measures to prevent the flow of water into his cellar, which were not necessary to be taken by persons who were not, exposed to similar danger. E"or is it an answer to say that the corporate officials had never directed him to make such a connection. The corporate officials have no power to prescribe how the persons connecting their houses with the sewers shall construct their sewer connections, except so far as -to prescribe that the connections shall be made in such manner as not to injure the sewer, which is the corporate property. The duty of protecting his property in this respect is .on the citizen, who may make his connection with a valve or without, as seems to him best, and as the necessity and situation of his property requires.
    
      Elias J. Beach, for the respondent.
   By the Court, Ingraham, P. J.

The recovery in this action was for damages occasioned by the bursting or overflowing of a sewer, built under the direction of the defendants, and made of insufficient size and capacity to carry off the water.

The referee finds that the damage was the direct consequence of the imperfect and insufficient construction of the sewer, of which the defendants had notice. • Repeated' notices of the difficulty are shown, and. promises from the Croton department to remedy the evil were made. The case of The Mayor v. Furze, (3 Hill, 612;) The Rochester. White Lead Company, v. City of Rochester, (3 Comst. 463;). The-Mayor, &c., v. Bailey, (2 Denio, 433;) and other cases cited on¡.the argument, would seem to dispose of the defendants’objection to liability for this cause. There was no obligation to build a sewer, but having determined to do so, then the duty imposed on the defendants was to build one sufficiently large, and so constructed ag to carry off the water, and not to throw it, by means of the sewer, on the adjoining property. The counsel for the defendants, however, relies-upon the case of Mills v. The city of Brooklyn, (32 N. Y. 489,) as overruling these cases, to some-extent. I do not think that the case applies to the present one. There the difficulty arose, not from the sewer throwing- water upon the adjoining premises, but from there not being sufficient means provided to drain the surrounding lands. And the court held that a municipal corporation was not liable for not providing sufficient sewerage for every part of a city, or village.

The 3d objection to the plaintiff’s recovery is, that the act of April- 19th, 1871, chapter 583, provides that no judgment, except on issues of law, shall be entered.up thereafter against the city or county of Hew York, except-upon a verdict of a jury. The report of the referee in this case was made May 4, 1871, and motion for- judgment on report made August 28, 1871.

It is objected, on the part of. th.e plaintiff, that the act of 1871, is a local act, and that the 5th section, containing the provision referred to, is not loyal, and is therefore unconstitutional. The contrary has been decided- in The People v. Supervisors of Chautauqua, (43 N. Y. 10.) Folger, J., says : The true view is, that such a bill is general, and it is local. Being local, and embracing more than one subject, it is therefore, as to the private or local subject, void.” (See also 16 N. Y. 58; 24 id. 405.) In the case of Gaskin v. Anderson, (7 Abb. N. S., 1,) both sections of the act, relating to different subjects, were considered local, and only one subject expressed in the title. The other was held to be unconstitutional.

[Fourth Department, General Term, at New York,

January 1, 1872.

I do not see how this provision can be avoided in its application. The plaintiff had not, by the report, obtained any vested right until the report was confirmed, and judgment entered thereon. Until then it was subject to the power of the court, and to any law the legislature might pass affecting the remedy. This was expressly decided in the Matter of Palmer, (40 N. Y. 561,) and in the Matter of widening Broadway, (ante, p. 483.) It may be the plaintiff may, oh notice of trial before a jury, use the report on the trial. We express no opinion now on that point, but we think it clear that the judgment in its present form cannot be sustained.

Judgment reversed, and trial ordered before, a jury, costs to abide the event.

Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.]  