Summary
In Simon v. City of New York (82 Misc. 454), which is still another decision by the Appellate Term of this department, the doctrine is not mentioned, but a fair interpretation of the opinion perhaps is that the doctrine does not apply. Layer v. City of Buffalo (274 N.Y. 135) merely notes the fact that the plaintiffs in that case did not rely upon the doctrine.
Summary of this case from Foltis, Inc., v. City of New YorkOpinion
November, 1913.
Clarence L. Barber, for appellant.
Albert J. Rifkind, for respondent.
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 pipe 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 cellar 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 A.D. 427; Talcott v. City of New York, 58 id. 514; Ettlinger v. City of New York, 58 Misc. 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.
SEABURY and BIJUR, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.