
    Herman Holzhausen, Respondent, v. The City of New York, Appellant.
    Second Department,
    January 18, 1907.
    Municipal corporation—negligence — when city not liable for overflow ■ . of sewers.
    A city in constructing sewers is not bound to provide for extraordinary and excessiye- rainfalls, and is not liable because, at a period of unusual and ' extraordinary rainfall, the sewers backed up and flooded private property,
    ■Woodward, J., dissented.
    
      Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of Jan-, uary, 1906, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.
    
      James D. Bell [John J. Kean and John J. Delany with him on the brief], for the appellant.
    
      Benjamin F. Norris, for the respondent.
   Jenks, J.:

The defendant appeals from a judgment against it in an action for damages to personal property from the overflow of the defendant’s sewer. A jury was waived and the court found that for' a period of two years previous to the 13th day of November, 1903, and five or six times every year, during storms the sewers maintained by the defendant were insufficient to cony off the large quantities of waters and refuse that had been collected by the defendant throughout said sewer district and emptied into said lateral and main sewers, causing said sewers to become choked so as to flood the streets, and casting upon plaintiff’s premises the water, refuse and sewage matter gathered by the defendant; and that for a period of two years previous to said 13th day of November, 1903, and during and after every large storm throughout said district, and in the immediate vicinity of plaintiff’s said premises, through the negligence of the defendant, the refuse, sewage matter and water collected by the defendant and emptied into its main and lateral sewers caused said sewers to back up and throw their contents out upon the streets and into.adjacent houses and stores, flooding the cellars and basements thereof, and notwithstanding these conditions the defendant negligently and carelessly failed to remedy said conditions; and as a conclusion of law, that by reason of .the acts aforesaid defendant was guilty of negligence, and was, and now is, liable in damages for the losses sustained by the plaintiff during said period of two years previous to the 13th day of November, 1903. This case does not show that the damages were due to the conditions and consequences found by the learned court, and which are the basis of its finding of negligence. It appears that the damages were due to the' single .instance of the water corning through the closet and the sink, due to an excessive, exceptional and, so far as the municipal records show, unprecedented rain storm, whose fall almost equaled one-fourth of the annual rainfall in the vicinity! We have lately discussed the question ©f municipal liability ip Ebbets v. City of New York (111 App. Div. 364), opinion by Miller, J., and it is unnecessary to enter upon a further general discussion. All that the evidence shows is that this water flowed up through the closet and sink under this exceptional rain storm. The city is not bound to provide against1 extraordinary and excessive rainfalls.! (3 Abb. Mun. Corp. 2231; Jones Neg. Mum-Corp. 272, note; Smith v. Mayor, 66 N. Y. 295.) In O'Donnell v. City of Syracuse (184 N. Y. 1, at p. 14). Gray, J., writing for the court, in comment upon Mills v. City of Brooklyn (32 N. Y. 495), says: “In deciding adversely to the claim of the plaintiffs for damages, it was held that the duty of draining the streets and avenues of a city, or village, is one requiringtthe exercise of deliberation, judgment and discretion. It cannot, in the nature of things, be so executed that in every single moment every square, foot of the surface shall be" perfectly protected against the" consequences of water falling from the clouds upon it. • The duty is * * * of a judicial nature, for it requires the qualities of deliberation and judgment. It admits of a choice of means and of the determination of fhe order of time in which improvements shall be made.’ ”

The judgment is- reversed and a new trial is granted, costs to abide the event.

Rich and Miller, JJ., concurred; Hirsohberg, P. J., concurred • in result; Woodward, J., dissented.

Judgment reversed and new trial granted, costs to abide the event.  