Lewenthal v. Mayor of the City of New York

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 [520] 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 [521] 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.]