Simon v. City of New York

Guy, J. This action was brought to recover damages for the flooding of the cellars occupied by plaintiff’s assignor at Nos. 1171-1175 Second avenue, by reason of the bursting of a main pipé of the water supply system. The defense was a general denial. Plaintiff’s assignor was a furniture dealer on the corner of Sixty-second street and Second avenue; he had been there three years. On January 17, 1912, he found his cellar flooded with six feet of water. At the same time he saw in the middle of Second avenue workmen repairing a broken water pipe, which had flooded the street. Plaintiff saw the water running out, but could not see the pipe. There was some proof of the damage claimed. There was no dampness in the cel [455] lar before the flood. The water ran out of the cellar through the cellar drain; it did not have to be bailed or pumped. In all the sewer or water main cases cited by the plaintiff in which the city was held liable, there was either evidence of actual neglect in the construction or operation of the water main or sewer, or notice to the city authorities of the. break or overflow, accompanied by neglect on their part to repair promptly; or actual notice, by reason of like prior occurrences, that the sewer or pipe was defectively constructed or maintained. Messersmith v. City of Buffalo, 138 App. Div. 427; Talcott v. City of New York, 58 id. 514; Ettlinger v. City of New York, 58 Misc. Rep. 229; Silverberg v. City of New York, 59 id. 492. There is an entire absence of such evidence in the case at bar. A municipality is not an insurer of its water or sewer system any more than of its streets. It is required only to use reasonable care in establishing and maintaining such a system. Jenney v. City of Brooklyn, 120 N. Y. 164. Seakhky and Bijub, JJ., concur. Judgment reversed and new trial granted, with costs to appellant to abide event.