The Court of Claims accordingly dismissed the claim, prompting this appeal by claimant. Initially, we agree with claimant that the Court of Claims erred in its characterization of the storm and subsequent flooding as an act of God. Fundamentally, an act of God is an unusual, extraordinary and unprecedented event (see, Greeley v State of New York, 94 App. Div. 605, 607; Resnick Co. v. Nippon Yusen Kaisha, 39 Misc.2d 513, 514; Cook v. State of New York, 26 Misc.2d 1, affd 20 A.D.2d 585; Christman v. State of New York, 189 Misc. 383, 387). Additionally, an act of God denotes "those losses and injuries occasioned exclusively by natural causes, such as could not be prevented by human care, skill and foresight. * * * If there be any co-operation of man, or any admixture of human means, the injury is not, in a legal sense, the act of God" (Michaels v. New York Cent. R.R. Co., 30 N.Y. 564, 571; see, Daly v. State of New York, 226 App. Div. 154, 157; Woodruff v. Oleite Corp., 199 App. Div. 772, 773; Greeley v. State of New York, supra; Towey v. State of New York, 12 Misc.2d 95, 99). The defendant has the burden of proving that there was an act of God and there was no contributing negligence (Barnet v New York Cent. HudsonRiv. R.R. Co., 222 N.Y. 195, 198; Michaels v. New York Cent. R.R. Co., supra; Resnick Co. v. Nippon Yusen Kaisha, supra, at 514-515).
tain the street, and in doing this it could not obstruct a natural watercourse; in the construction and maintenance of a street it was bound to provide for taking care of the water of a natural watercourse the same as any other person or corporation in possession of premises along the course of a stream. Every owner of premises through which a natural stream flows has the right to have the water pass unobstructedly from his property; it is a natural right, inherent in the nature of the case ( Scriver v. Smith, 100 N.Y. 471), and if the defendant, in maintaining its highway, was called upon to construct a bridge or culvert (or to purchase its right in such highway with the bridge or culvert already in existence) it was bound to have that bridge or culvert constructed with an opening of sufficient capacity to meet the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as may reasonably be expected to occur although infrequently. ( Greeley v. State of New York, 94 App. Div. 605, 607, and authorities there cited; New England Brick Co. v. State of New York, 151 id. 274, 277, 278, and authorities there cited.) It likewise owed the duty of using reasonable care to see that the culvert did not become clogged and unfitted for the purpose for which it was designed ( New England Brick Co. v. State of New York, supra), and the evidence in this case shows that the condition had existed for some time; that the attention of the mayor and at least one of the aldermen had been called to the situation, and that the city had failed and refused to correct the condition.
In Higgins v. N.Y., L.E. W.R.R. Co. (78 Hun, 567, 568) Mr. Justice HAIGHT says: "It was the duty of the defendant to provide a bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as experience would lead the people residing in that vicinity to believe might sometimes occur, although infrequently." In Greeley v. State of New York ( 94 App. Div. 605), a case very similar to this (Justice HOUGHTON writing), it is said: "It is the duty of an individual or corporation constructing a bridge over a stream to provide such bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as may reasonably be expected to occur, although infrequently. ( Higgins v. N.Y., L.E. W.R.R. Co., 78 Hun, 567; Mundy v. N.Y., L.E. W.R.R. Co., 75 id. 479.) Hence it follows that a like duty is imposed upon the State in the construction and management of an aqueduct.
In order to invoke the Act of God theory of defense the city must establish that the weather conditions were so extraordinarily harsh as to not be anticipated by reasonable design engineers of the sewers. Hence, where the negligent acts (or omissions) of the defendant contribute to the injury sustained, the Act of God defense should not be applied (Greeley v State of New York, 94 App. Div. 605 [3d Dept 1904].) Additionally, the city's attorney argues that the city is not responsible when sewers back up into the homes of the individuals who use those sewers, citing the case of Beck v City of New York ( 23 Misc.2d 1036 [Sup Ct, Queens County 1960], affd 16 A.D.2d 809 [2d Dept 1962]).
Nevertheless, on the record before us we have concluded that it was the accumulation of the broken ice jamming the openings under the bridge and the abutments of the bridge, reaching such an elevation that they were on the south side of the bridge above the highway line that directly caused the damage to the claimants' property. Whether or not there was concurring negligence on the part of anyone else we feel that the State was negligent in not providing free and unincumbered clearance under the bridge for the waters of Fulmer Creek. ( Greeley v. State of New York, 94 App. Div. 605.) We hold therefore that from the time that the State of New York assumed responsibility for the bridge it assumed the concurrent responsibility of making sure that the bridge structure did not become a source of danger and did not become an obstruction holding back the waters of Fulmer Creek causing them to overflow and do the damage that has been established here.
At the same time, where injury has been brought about by an act of God coupled with negligence on the part of the defendant, he is held liable. (Greeley v. State of New York, 94 App. Div. 605; Woodruff v. Oleite Corp., 199 App. Div. 772; General Cigar Co. v. Reading Co., 265 App. Div. 322; Sinischalchi v. Baslico, 92 N. Y. S. 722.) The cases recognize the fact that following an unprecedented storm, the municipality must be given a reasonable time in which to take remedial action.
At the same time, where injury has been brought about by an act of God coupled with negligence on the part of the defendant, he is held liable. ( Greeley v. State of New York, 94 A.D. 605; Woodruff v. Oleite Corp., 199 A.D. 772; General Cigar Co. v. Reading Co., 265 A.D. 322; Sinischalchi v. Baslico, 92 N.Y.S. 722.) The cases recognize the fact that following an unprecedented storm, the municipality must be given a reasonable time in which to take remedial action.