Opinion
May Term, 1899.
Charles E. Hughes, for the motion.
Theodore Connoly, opposed.
This action was brought to recover damages for injuries to personal property under circumstances hereinafter stated. The complaint was dismissed at the trial on the ground that liability of the defendant was not shown, and the exceptions were ordered to be heard in the first instance at the Appellate Division.
The plaintiffs, merchants, were the lessees and occupants of the basement and cellar of a building situate at the southwest corner of Eighteenth street and Fourth avenue in the city of New York. In the cellar there was stored a quantity of valuable merchandise, which on the night of the 1st of November, 1897, was greatly damaged by water which penetrated into the cellar through a retaining wall. The cause of the damage and its extent are not disputed. Liability of the city only is involved.
The water which injured the plaintiffs' merchandise was collected in a trench opened on the Fourth avenue, extending along that avenue from Seventeenth street to a point beyond and north of the corner of Eighteenth street. The trench was dug by the Tubular Dispatch Company for the purpose of laying pneumatic tubes therein. That company had legislative authority to dig the trench, but the work was to be done in accordance with a general permit granted in July, 1897, by the commissioner of public works of the city of New York. By the terms of that permit, all the work was to be due under the immediate supervision of an inspector to be appointed by the commissioner, and such an inspector was appointed. He had direction of the work at and prior to the time of the occurrence which forms the subject-matter of this action. Not only was a general permit granted, but early in October, 1897, the dispatch company received from the commissioner of public works a special permit to open Fourth avenue for a certain distance, which included the frontage of the plaintiffs' premises. Under those permits, the dispatch company (the city's inspector supervising the work) dug the trench on the side of the Fourth avenue, its westerly line being within two feet of the curb line. The excavated material, consisting of earth and stones, was thrown over and piled up on the space between the trench and the curb, thus completely choking and obstructing the gutter on Fourth avenue and the sewer culvert at the southwest corner of Eighteenth street and Fourth avenue. Under normal conditions all the surface water of Fourth avenue between Union Square and Eighteenth street on the west side, would run into this culvert and find its way into the sewer. That culvert was at the lowest point as the street was graded in that neighborhood, and into it should have entered the drainage of a large street area. On the afternoon of November 1, 1897, a very heavy rain storm began, and on the night of that day the plaintiffs' premises were invaded by water which had collected in the trench to a considerable depth. That accumulation of water might readily be found, on the facts proven, to have been caused in part at least by the obstruction of the gutter and culvert, and in part by the want of proper protection of the trench. The volume of water was so great that it washed away the earth in front of the retaining wall, or forced its way through it, and entered the cellar with the consequences above stated.
Although it would be impossible to determine how much of the surface water would have found its way into the culvert had it and the gutter not been choked or obstructed in the way mentioned, the jury nevertheless could have found that a contributing cause of the inundation in the plaintiff's cellar was the condition of the gutter and culvert. That the municipality is liable for neglect in permitting those conditions to exist, is settled. ( Barton v. City of Syracuse, 36 N.Y. 54. ) It was decided in that case that in the construction of sewers and keeping them in repair, municipal corporations act ministerially and are bound to exercise needful diligence, prudence and care, and the authorities in support of that rule are cited in the opinion of the court. The rule is not varied because some third party does the act which results in the mischief, provided the city has actual notice or knowledge of the existence of the obstruction or a sufficient time has elapsed to justify the inference or imputation of notice. The proof shows that the gutter and culvert were in the condition complained of for two days or more. It is unnecessary to determine whether notice is to be implied in this case, because it was proven that an official of the city was in charge of this work and that by the terms of the permit it was being done under his supervision and direction. But we are not required to place the liability of the defendant upon the distinct ground of the condition of the gutter and the culvert. The work connected with this trench was being done under a permit of the city and under terms and conditions which gave it the control of essential details of the manner in which the work was to be performed. It has been frequently held that where a municipal corporation enters into a contract with a third party to do work, but reserves to itself the manner in which that work shall be done, it becomes liable for negligence in the performance of that work. ( Vogel v. The Mayor, 92 N.Y. 10; Goldsmid v. The Mayor, 14 App. Div. 138; White v. The Mayor, 15 id. 443.) The test of liability is whether the city has the control of the manner of doing the work, and in this case it is obvious that it did have it. It is altogether an ineffectual contention that the purposes of the city's control was limited merely to the refilling of the trench and the repaving of the street. That is but an assumption here. What it retained and what it kept control of was the general supervision and direction of the whole work. The provisions of the permit are most distinct. The laying and construction of the tubes was required to be in such a way as not to interfere with the water mains or surface connections or with the sewers or house connections of the street. Work was to be carried on only in such places and for such distance in each street as the commissioner of public works or his representative should from time to time designate. All the work from the time the excavation was commenced to the time the pavement was relaid was to be under the supervision of inspectors appointed by and to receive their instructions from the commissioner of public works. If any foreman, mechanic or laborer was negligent in carrying out the instructions given by the authorized representative of the department of public works, he was forthwith to be discharged and not re-employed on the work without the consent of the commissioner of public works, and the company was required to give forty-eight hours' notice to the water purveyor of its desire to commence work at any point, and should not disturb the pavement, commence work or deposit material anywhere until the inspectors were on the ground to give the necessary instructions. Power was reserved to the commissioner of public works to revoke the permit in case of any violation of its terms and conditions or of any laws of the State or ordinances of the city.
The manner of performance of this work was, under the terms of the permit, within the control of the municipality. In this case no protection was afforded against the accumulation of water in the trench and its percolation through the soil into the plaintiffs' premises. The surface drainage from the extensive street territory was cut off so that it could not reach its usual and appropriate outlet, and it was thus collected in the trench at the lowest point to which it would flow as the street was graded.
We have, therefore, the case of a work authorized by the city, the manner of performance of which is in the control of the city, the fact that the trench was left open for two or three days, and the further fact that no safeguard or protection was afforded against the accumulation of the surface water at a point from which it was liable to be discharged or would find its way into and upon the premises of adjoining property owners.
The complaint was improperly dismissed. The exceptions must be sustained and a new trial ordered, with costs to the plaintiffs to abide the event.
VAN BRUNT, P.J., BARRETT, RUMSEY and O'BRIEN, JJ., concurred.
Exceptions sustained and new trial ordered, costs to plaintiffs to abide event.