Sundheimer v. City of New York

McLaughlin, J.: On the 24th of August, 1901, certain personal property belonging to the plaintiff was injured by the overflow of a sewer which extended past his premises, and this action was brought to recover from the defendant the damages sustained, upon the ground that the same were caused by the negligence of the city of New York in the construction and maintenance of the sewer. The answer denied defendant’s liability and alleged as an affirmative defense that whatever damages were sustained by the plaintiff were the result of a storm of unusual severity “ which the defendant had no reason to anticipate and was helpless to guard against.” At the conclusion of the trial a verdict was directed for the defendant, and from the judgment thereafter entered plaintiff has appealed. The damages sustained by the plaintiff by reason of the overflow of the sewer were not litigated at the trial, the defendant there stipulating that the plaintiff was in fact injured to the amount of $300. The fact, however, that the plaintiff sustained damage did not, in and of itself, entitle him to recover the same from the city. To entitle him to such recovery he was obligated to prove the other facts alleged in the complaint, viz., that the overflow was due to the negligence of the city in the construction of the sewer in the first instance, or its maintenance thereafter. The evidence adduced upon the trial failed to establish either one of these essential facts. First, as to the construction of the sewer. It appeared that it was built according to a well-recognized and approved plan, and, according to the testimony of plaintiff’s own expert, when completed was considered by the best engineers in the city a “good sewer,” and in this he was corroborated by defendant’s experts. According to their testimony the sewer was constructed according to a recognized formula for the construction of sewers. By this formula the area to be drained was ascertained and the capacity of the sewer calculated upon the theory of a possible rainfall of one inch per hour within that territory, and also what had been or might be built upon territory in the locality to be drained by the sewér. Taking into consideration all of these facts, the sewer is “ sufficient in capacity to carry off the ordinary rain that will fall, namely, one inch per hour in that watershed district.” In this connection it is worthy of note that at a [55] ■certain, stage of the trial the plaintiff’s attorney conceded — though the concession was afterwards withdrawn — that the sewer was properly constructed “ as far as the knowledge of engineering at that -date went.” Therefore, as to the construction, there was absolutely no evidence offered upon the trial which would have justified a finding to the effect that the city was negligent in any respect, either as to the location, construction or outlet of the sewer. Its liability to the plaintiff, if it be liable at all, must, therefore, be based upon its negligence so far as the same related to the maintenance of the sewer after it had been constructed, and upon this branch of the case plaintiff also failed. What the plaintiff attempted to prove was that the sewer was of insufficient capacity ; that the defendant had neglected to clean it; that dirt had been permitted to accumulate in it, which diminished its capacity to a large extent, and, by reason thereof, the overflow was caused. The testimony of some of plaintiff’s witnesses tended to show that the sewer had overflowed on different occasions ; that they had not seen it cleaned — but, as against this, the testimony of plaintiff’s own witness, Mulcahy, showed that it was cleaned within a few days after a storm which occurred on the fifth of July preceding the one which occurred on the twenty-fourth of August, when plaintiff sustained his damage — while defendant’s witness, Byrne, whose duty it was to examine and clean the sewer, including the receiving basins, etc., in that section of the city, testified that the same was cleaned in front of plaintiff’s premises on March 26, 1901, and also on the tenth of July following. There was also testimony to the effect that the sewer was, from time to time, thoroughly inspected and cleaned. The negative testimony, therefore, of some of plaintiff’s witnesses to the effect that they had not seen the city authorities clean the sewer was overcome by the positive, affirmative evidence of the witnesses referred to, to the effect that the sewer was in fact cleaned. What caused the sewer to overflow at the time in question is apparent. There was, on that day, a very severe storm — the severity of which, according to the testimony of one of the defendant’s witnesses, had been exceeded by only four storms in over thirty years — a storm in which over an inch of water fell the first hour and nearly two inches and a half in six hours. Loose earth, rubbish, etc., were carried into the receiving basins, which, during the [56] early part of the storm, became clogged, and thereafter the water, being unable to escape through them into the sewer, was carried into the basements, cellars and houses located along its line. There is no doubt that the plaintiff was injured, as doubtless many others-were, but the defendant was not responsible for it; it was not bound to anticipate a storm of this character. All that was required of it, when it built the sewer, was that it should adopt a plan that was reasonably calculated to subserve the needs of the present and those of the future so far as they could be reasonably anticipated, and to thereafter properly care for it. This it did so far as appears from this record. Stress is laid by the appellant upon Talcott v. City of New York (58 App. Div. 514). There this court held where a sewer overflowed, that, in the absence of facts showing the cause, a burden was cast upon the city to explain. Here the city assumed that burden and established by uncontradicted evidence the cause of the overflow, viz.,, a storm of unusual severity. The case of Seifert v. City of Brooklyn (101 N. Y. 136) is clearly distinguishable from this one. No evidence whatever was offered which would have justified a finding that the sewer was not, as already said, properly constructed, or that it was not thereafter properly maintained, including the receiving basins and outlets. Where a municipality has thus constructed and maintained a sewer adequate for all ordinary purposes, it is not liable for injuries caused by an extraordinary storm of the character of the one which occurred at the time stated in the complaint. A man of ordinary prudence and good judgment would not be required to anticipate such a storm, and certainly no-more can be required of the city than could be of him. The judgment appealed from must, therefore, be affirmed, with costs. Van Brunt, P. J., and Ingraham, J., concurred; O’Brien, J., dissented.