Daggett v. City of Cohoes

The first point made is that the plaintiff should have been nonsuited. Defendant claims that there is no proof that the water from the sewer caused the alleged injury to the house, and that there is no proof that the filth came from the sewer. There is evidence that when the Hart-Street sewer was built it was connected with the Main-Street sewer, so that the bottom of one was on the same level with that of the other, and also that at that time there were six inches of stagnant water and sand in the Main-Street sewer. There is evidence, also, of the construction of the surface well, and its removal in 1884. It is shown, also, that there was at a certain time an obstruction in the Hart-Street sewer, which arose from the fact that a sewer-pipe from some premises, having been connected at the top instead of the side of the Hart-Street sewer, had dropped in, and had thus obstructed the flow of *884water, and caused an accumulation of solid substance. This was removed some time in 1884. There is evidence that the superintendent of streets was several times, in 1882 and 1883, notified that the water came into the cellar of the plaintiff’s premises, and that the same notice was given to the mayor of the city once in 1882 or 1883. This was subsequent to the time when plaintiff became owner of the premises. There was evidence given of injury to the building. The defendant claims that this injury was of such a character that it could not be caused by the water which came from the sewer; but it seems to us that this was a question of fact, which the court could not decide. What the exact effect would be of water which came into a cellar is not a matter for a court to determine. Hor could the court decide that the foul substances such as are carried in sewers, and such as were deposited in the cellar, came, as the defendant claims, from the occupants of the house themselves. All these were matters for the jury.

The defendant claims that plaintiff should have been nonsuited because no notice of the obstructed condition of the Hart-Street sewer had been shown. Smith v. Mayor, 66 N. Y. 295. How, it appears that the superintendent and the mayor had received notice of the water in the cellar, and that the superintendent thought that the city ought to clean out the cellar. This indicates that he suspected that the filth in the cellar was due to some defect in the city sewer. Of course, the city is not bound to more than reasonable care. The city could not, without some indication of a defect in the sewers, be expected to dig them up, to examine whether any defect existed; and we think that the charge of the learned judge was in accordance with this view. He only stated that it was the duty of the city to inspect the sewer, as often as might be necessary, to ascertain obstructions, and he had previously explained this point as requiring only such duty as would be consistent with the conduct of a person of ordinary care.

So far as the water and filth were thrown upon plaintiff’s premises by the effect of the surface well bringing water there which would otherwise have flowed elsewhere, this case is within the doctrine of Seifert v. Brooklyn, 101 N. Y 136, 4 N. E. Rep. 321; Noonan v. Albany, 79 N. Y. 475; Byrnes v. Cohoes, 67 N. Y. 204.

The defendant claims that evidence was improperly admitted of the decreased value of the property, owing to the injury done to the building, under the rule in Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. That was an action for a nuisance by an unlawful construction of a railroad in a street. If the railroad were to be removed, the nuisance would cease, and there would be no longer any injury to the plaintiff’s property. But in the present case the plaintiff’s property had been put out of repair. If the city removed the obstruction, still the injury had been done, and the property would continue to be so much less valuable. The plaintiff offered to prove how much it would cost to restore the building, and that was objected to. She then proved the decrease in value owing to the impaired condition.

We are referred by defendant to the case of Kosmak v. Mayor, etc., 6 N. Y. Supp. 453, as an authority to show that, because the plaintiff has voluntarily connected her premises with the public sewer of the city, she cannot recover for the neglect of the city. But that case is entirely different from the present. In that case the plaintiff connected his premises with a private drain, which he knew to be such. He was also informed that the private drain was from property-which had been taken for the Brooklyn bridge, and, further, that if he went in there he went at his own risk, as the city officials knew nothing about it, and had nothing to do with it, (the private dram.) But, further, it will be seen that the defendant had a verdict; and the court had charged that, if the drain in Chatham street (the private drain) was obstructed, the city was not responsible, but that if the obstruction were in the Frankfort-Street sewer (the public sewer with which the private drain con*885nected) then the city was responsible. So that the charge of the court was contrary to the present defendant’s views; and, of course, there was no review of that part of the charge, as it was in plaintiff’s favor, and the plaintiff was appellant. It seems to us, then, that this case "was fairly submitted to the jury, and that there is no ground for reversing the judgment. Judgment and order affirmed, with costs.