Opinion
May Term, 1901.
Claudius Rockefeller and Samuel B. Coffin, for the appellant.
Levi F. Longley, for the respondent.
A municipality in determining whether it will build a sewer, its location and general plan, acts judicially and is not ordinarily liable in a civil action for its decision in any matter connected therewith. Such action is governmental and public and not ministerial and private. After a municipality has decided to build and maintain a sewer then the act of building and maintaining the same is ministerial and not judicial or governmental. These principles seem to be so fully settled in this State that a discussion of the reasons therefor is unnecessary. ( Lloyd v. Mayor, 5 N.Y. 369; Barton v. City of Syracuse, 36 id. 54; McCarthy v. City of Syracuse, 46 id. 194; Mills v. City of Brooklyn, 32 id. 489; Seifert v. City of Brooklyn, 101 id. 136; Quill v. Mayor, 36 App. Div. 476; Hughes v. City of Auburn, 161 N.Y. 96.)
Where a municipality undertakes a ministerial duty it incurs the same liability for injuries to property resulting from negligence as does an individual. ( McCarthy v. City of Syracuse, supra.) The defendant in this case undertook the construction of a public sewer in the street adjoining plaintiff's premises. The plans and specifications for such sewer were adequate and sufficient, but it was the duty of the defendant to use reasonable care in constructing the sewer according to the plans and specifications, and it was also the duty of the defendant to use reasonable care in keeping said sewer in proper repair. ( McCarthy v. City of Syracuse, supra; Nims v. Mayor, 59 N.Y. 500.) The trial court found that the defendant constructed said sewer in a negligent, insufficient and improper manner, and that it did not use to exceed three loads of sand in laying the entire 2,896 feet of sewer, and that by reason of such negligence and the failure of the defendant to carry out the plans and specifications the said sewer became broken, crushed and disconnected and filled with solid matter to such an extent as to back up the sewage therein and cause the same to flow into plaintiff's house. For several years after the sewer was completed it accomplished the purpose for which it was built. The fact that the sewer proved adequate to carry away the surface water and sewage for several years after it was completed, and then failed to carry away such surface water and sewage, tended to show that it had in some way become defective or obstructed. ( Magee v. City of Brooklyn, 18 App. Div. 22.) We are of the opinion that the evidence discloses a state of facts that should have led the defendant to an investigation of the condition of the sewer, at or about the intersection of State and Third streets, long prior to the time when the same was in fact uncovered, examined and repaired. The trial court has found that the damage to the plaintiff's property, and also the damage to her health, was occasioned by the negligence of the defendant, and that the plaintiff in no way contributed to such injury by her own negligence. All the findings of fact made by the trial court seem to be based upon sufficient evidence to sustain them. The defendant insists that the plaintiff cannot as a matter of law recover damages from the defendant for injuries to her health arising from a defective public sewer, and such claim of the defendant constitutes the important question arising upon this appeal. The Court of Appeals, in the case of Hughes v. City of Auburn ( 161 N.Y. 96), has held that no positive duty rests upon a municipality "to construct or maintain a system of sewers for the protection of health. It may have extensive powers in that respect, but their exercise rests largely in the discretion of the authorities, and for an omission to act at all or for some action that may appear to be unwise or even negligent, where there is no actual invasion of property rights, but merely a failure to accomplish the desired end in the promotion or protection of health, the individual has no right of action."
This was an action brought by an administratrix, the mother of the intestate, and she claimed that her daughter's death had been caused by the defendant negligently constructing and maintaining a sewer so as to flood the house and premises where the plaintiff lived with her family. The house and premises were owned by the plaintiff individually, and the deceased had no interest whatever in the property. The court held that the action was not brought by the plaintiff in her right as owner, but only as a personal representative of the intestate, and that as the intestate was not the owner of the property on which the trespass was committed, she could not have recovered in her lifetime, and that the plaintiff had no right of action as her representative. The court, however, recognized the liability of a municipality for a trespass or nuisance in the following words: "It is doubtless true that a city may not conduct sewage into the house or upon the premises of an individual, and if it does, is responsible to him in damages for the trespass or the nuisance." The decision in Hughes v. City of Auburn is not a departure from the former decisions of that court with reference to actions to recover damages for a nuisance. In Kavanagh v. Barber ( 131 N.Y. 211), which was an action to recover damages for personal injury by reason of vapors arising from a manufactory, evidence was admitted showing that the air in the neighborhood was tainted with odor and that the plaintiff's wife and daughter became ill in consequence. The house occupied by the plaintiff was owned by the plaintiff's wife, and not by the plaintiff, and the question presented was whether an action could be maintained by the husband to recover damages for the injury. The court say: "Interference with public and common rights creating a public nuisance, when accompanied with special damage to the owner of lands, gives a right of private action. The public nuisance as to the person who is specially injured thereby in the enjoyment or value of his lands becomes a private nuisance also. Upon the evidence in this case on the part of the plaintiff, the defendant maintained a public nuisance. The air of the neighborhood was for a long distance infected with the disagreeable odor of the asphalt and rendered residence within the area uncomfortable and life therein less enjoyable. Upon these facts the plaintiff's wife who owned and lived in the premises, sustained an actionable injury." In Francis v. Schoellkopf ( 53 N.Y. 153) it was held that an action for damages can be sustained at the suit of one who has sustained damages peculiar to himself, but that where an injury is common to the public, and special to none, redress must be sought by a criminal prosecution in behalf of all. In Seifert v. City of Brooklyn ( 101 N.Y. 136) it is held that if a municipality in the exercise of a discretion reposed in it by the law creates a nuisance to public or private rights, it is responsible therefor. And in this case, referring to the case of Baltimore Potomac R.R. Co. v. Fifth Baptist Church ( 108 U.S. 317), it says: "Municipal corporations have quite invariably been held liable for damages occasioned by acts resulting in the creation of public or private nuisances or for an unlawful entry upon the premises of another whereby injury to his property had been occasioned." Munk v. City of Watertown (67 Hun, 261) is an action brought by the plaintiff for damages alleged to have been sustained to his premises, also for loss of services of his wife by reason of sickness, caused by large quantities of water, filth and sewage being driven into his cellar and upon his premises. A verdict was rendered in favor of the plaintiff in the sum of $250 damages. It seems to be assumed that all that part of the verdict other than $112.75 was for loss of services of plaintiff's wife. The judgment was reduced to $112.75 on the ground that the value of the services performed by the wife when in health, and the character and extent of the work performed by her in keeping the plaintiff's house, had not been shown. There is no suggestion in the opinions written in the case that the plaintiff was not entitled to recover for loss of services of his wife if evidence sufficient to sustain the amount of such claim had been given. Evers v. Long Island City (78 Hun, 242) is an action to recover damages to personal property and for sickness occasioned by reason of the negligence of the defendant in constructing and maintaining a sewer. Judgment was directed in favor of the defendant by the trial court. The General Term reversed the judgment of the trial court without indicating any distinction between damages to property and damages by reason of illness. White v. Mayor ( 15 App. Div. 440) is an action for injury to health by reason of negligence in obstructing sewage and drainage. The decision was for the defendant. It was put upon the ground of failure to file notice of intention to commence an action and other grounds in no way suggesting that the action would not lie simply by reason of the fact that the claim was for injury to person and not to property.
The contention of the defendant, that the owner of property on which sewage has overflowed from a public sewer cannot recover damages for loss of health, has been expressly decided against the defendant's contention in the case of Allen v. Boston ( 159 Mass. 324). This was an action to recover for injuries to plaintiff's property, health and business occasioned by a defective sewer. The court say: "The defendant also argues that the only damage the plaintiff can recover, if any, would be the injury to his property; and that injury to his health or business was wrongly allowed to be included in the damages. Such damages were specially alleged and are clearly recoverable." The Allen v. Boston case is referred to in the opinion in Hughes v. City of Auburn ( supra), without disapproval, but distinguishing it from that case. Where, by reason of the negligence of a municipality, a trespass is committed upon premises by allowing the contents of a sewer to overflow thereon and a private nuisance is thus created, we see no reason why the owner of the premises cannot recover as damages, not only the injury to the property, but all other damages that are the natural and proximate result of the wrong. The damages must depend upon the proof in each case, and are only limited by the ordinary rules that require that they should not be remote or speculative.
The judgment is affirmed, with costs.
All concurred, except EDWARDS, J., not voting.
Judgment affirmed, with costs.