
    HARDY v. CITY OF BROOKLYN.
    
      City Court of Brooklyn;
    
    
      General Term, July, 1879.
    Municipal Coepobations.—Intebpeetation op Statutes.—Sewerage.—Action.
    The act of the legislature (L. 1857, p. 100, c. 521), in relation to the sewerage and drainage in the city of Brooklyn, cannot be considered a part of the consolidation act (L. 1854, p. 829, c. 384) of that city, but was an independent act.
    The exemption of a city from liability for wrongful acts of its servants is in derogation of the common law, and should not be extended beyond the natural interpretation of the language of the statute freeing it from such responsibility.
    Although one may suffer, in common with others, from the wrongful acts of municipal officers, yet if he sustains damages peculiar to himself, he may maintain a private action therefor.
    The action of the water board of a city in planning a sewer in pursuance of an act of the legislature is a judicial act, for any error of ‘ judgment wherein the city will not be responsible; but if there is, a departure from such plan, and damages result, it will be liable therefor.
    Appeal by the plaintiff from a judgment of non-suit.
    The action was brought by John J. Hardy against the city of Brooklyn, for $50,000 damages, arising from the Third avenue sewer, which empties into the bay at Twenty-eighth street and Third avenue. The sewer, as originally planned, was to turn off at Forty-ninth street, where its contents would have been discharged into deep water. There being a lack of money, as the contractors had used up the appropriation, the sewer was turned off at Twenty-eighth street. Its contents were, therefore, emptied upon lands under water, in which the plaintiff had an interest.
    The corporation counsel contended that under the new city charter, which went into effect June 28, 1873, the city was not liable for malfeasance or nonfeasance of its officers, but that they were individually liable.
    At the trial the plaintiff was nonsuited, and thereafter appealed to the general term.
    
      Edgar M. Chíllen and Jesse Johnson, for plaintiff, appellant.
    The board of officers under whose direction the sewer was constructed were city officers, and the doctrine of respondeat superior applies (Kingsley v. The City of Brooklyn, 5 Abb. New Cas. 1; Grant v. Brooklyn, 41 Barb. 381; Mills v. The City, 32 N. Y. 489 ; Hogan v. The City, 52 Id. 282 ; Slaight v. City of Kingston, 11 Hun, 594; Lewenthal v. The Mayor, 5 Lans. 532). The city cannot claim exemption, on the ground that the acts complained of 'were done in a judicial, or quasi judicial capacity (Mills v. The City, supra; L. 1857, c. 521); nor that the board acted .ultra vires, and therefore its principal is not liable (Bennett v. Michigan Southern, &c. R. R. Co., 22 N. 
      
      Y. 258 ; Rounds v. Delaware, Lackawanna and Western R. R. Co., 64 Id. 129; Higgins v. Watervliet Turnpike and R. R. Co., 46 Id. 23; Day v. Brooklyn City R. R. Co., 12 Hun, 435; Shea v. Sixth Avenue R. R. Co., 62 N. Y. 180; Althorf v. Wolf, 22 Id. 365; Cosgrove v. Ogden, 49 Id. 255; Wood on Master and Servant, § 307). The injury was actionable, although common to many (Francis v. Schoellkopf, 53 N. Y. 152, 154). The defendant is not exempted from making compensation for the injury it has inflicted by virtue of the statute (L. 1862, p. 203, c. 63, § 39 ; Gray v. The City, 2 Abb. Ct. App. Dec. 267; L. 1857, c. 521; The Consolidation Act of 1864; L. 1873, p. 1303, c. 863, § 27 ; Roder v. South Easterly Road Dist., 36 N. J. L. 273).
    
      William O. DeWitt, for defendant, respondent.
    The exemption clause contained in the charter act of 1862, as expounded by the courts, absolves the city from the liability sought to be established by the plaintiff (L. 1862, p. 203, c. 63, § 31; 50 Barb. 305; Gray v. City of Brooklyn, 2 Abb. Ct. App. Dec. 271, 272). Any act creating corporate power or liability for a city, is a part of its charter (Purdy v. People, 4 Hill, 384, 393, 394, 399, 407). The exemption statute, as contained in the charter act of 1873, which it must be conceded applied to anything subsequent to the date of its passage, cut off any right of action on the part of the plaintiff which may have existed prior thereto (L. 1873, p. 1303, c. 863, § 25). The sewer having been constructed under authority of law, the court below was right in holding that the plaintiff could not recover such damages as are disclosed by the testimony (Harris v. Thompson, 9 Barb. 350 ; Plant v. Long Island R. R., 10 Id. 26; Kavanagh v. Brooklyn, 38 Id. 232; Wilson v. New York, 1 Den. 595; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195; Alexander v. Milwaukee, 16 Wis. 247 Lansing v. Smith, 9 Wend. 9; People v. Corp. of Albany, 11 Id. 539; Mills v. City of Brooklyn, 32 N. Y. 489). General damages, supposed to attach to the surrounding neighborhood by reason of foul odor or otherwise, are not recoverable in a private action (Lansing v. Smith, 8 Cow. 146 ; 4 Wend. 9; Doherty v. Bunting, 1 Sandf. 1; Squier v. Gould, 14 Wend. 159; Butler v. Kent, 19 Johns. 223). A mere deed, without actual possession, was not sufficient evidence of title (Gardiner v. Hart, 1 N. Y. 528). The plaintiff, in respect to these lands, damages to which are alone recoverable in this action, stands in the position of a reversioner out of possession, and cannot therefore recover, (Dobson v. Blackmore, 9 Q. B. 991). If the opening in the Third avenue sewer at Twenty-eighth street, or that sewer itself, or the outlet or trunks thereto at Twenty-eighth street is to be regarded as outside of the original sewer plan, or if the trunk or outlet makes a trespass on a private property, then the act, or acts of the officers complained of, were ultra vires, and so totally destitute of authority, or color of authority, as to afford no legal ground for a recovery against the city (Hanvey v. Rochester, 35 Barb. 177).
   Reynolds, J.

We think this case should have been submitted to the jury. It is unnecessary at this stage of the case to do more than simply indicate the grounds of our decision.

The question most fully discussed upon the argument was whether the city is wholly relieved from liability under the act of 1862.

That act was passed as an amendment to the original consolidation act of 1854, and the several acts amendatory thereof and supplemental thereto, or affecting the same. Section 39 provides that the city “ shall not be liable in damages for nonfeasance, or misfeasance of the common council, or of any officer of the city and appointee of the common council, or any duty imposed upon them, or either of the provisions of titles 4 and 5 of this act, or of any duty enjoined upon them, or either of them, as officers of government by any provision of this act.” As the act of 1862 is an amendment of the act of 1854, it is to be considered as incorporated therein, and accordingly it has been held that the expression “this act” section 39, above quoted, applies to the original act as so amended. But we do not feel warranted in giving such a construction to those words as to make them apply to the act of 1857, under which the sewer in question was constructed. That was an independent act in relation to sewerage and drainage in the city of Brooklyn, and we do not see how it can be drawn into the act of 1854, as amended in 1862, so as to be called a part of that act. The exemption from liability is in derogation of the common law, and should not be extended beyond the natural interpretation of the language of the statute.

Whatever, therefore, may be the effect of the exemption contained in the act of 1873, the nonsuit was improperly granted, so far as it depends upon this ground of defense.

The chief judge seems to have based the dismissal mainly upon the ground, that plaintiff suffered only in common with others, and could not maintain a private action for damages. It is true that others may have suffered from the same cause, but so far as the plaintiff was deprived of the beneficial enjoyment of the premises occupied by himself or his tenants, he sustained damages peculiar to himself. The case of Francis v. Schoellkopf, 53 N. Y. 152, seems to cover this objection.

It is also claimed by the defendant’s counsel, that the action of the water board in devising this sewer, was of a judical nature, and that any error in their conclusions cannot be made the subject of an action for damages.

This may be conceded as to the plan which they devised and adopted in pursuance of the act of 1857, and in the manner therein prescribed. That pían provided for a sewer running down Third avenue, and discharging at Forty-ninth street; but, as we understand the evidence, it does not provide for any stoppage, discharge, or turning at Twenty-eighth street. When the board came to make its contract, it stopped short of the plan it had judicially adopted, and discharged the sewerage by a lateral cut at Twenty-eighth street, in the vicinity of plaintiff’s premises, if not upon them, thereby causing a nuisance, as the plaintiff claims, and as we think he had a right to urge before the jury upon the evidence.

Upon this view of the matter we do not think the case comes within the line of decisions holding officers or municipal corporations exempt from responsibility for acts of a quasi judicial character.

Our conclusion is that the case should go back for a new trial. Costs of the appeal to the appellant to abide the event.  