December 30, 1910.
James E. Bell [ J.W. Johnson with him on the brief], for the appellant.
Alexander Rosenbaum, for the respondent.
The obligation upon the defendant was due care to prevent the overflow of the sewer through the house connection of plaintiff's premises. The evidence does not show that there was fault in the construction of the sewer, or negligence, either in the omission to remove the obstruction which caused the overflow, after notice thereof, actual or constructive, or in the inspection of the sewer system. The evidence indicates that the "backing up" of the sewage was caused by a stoppage of sticks used by children when in the street at play in the game of tip cat. It does not appear how long this stoppage had existed, and consequently that any reasonable inspection, such as could be exacted by the most rigid rule imposed upon a municipality in charge of so great a system, could have revealed the obstruction. The overflow was an isolated instance.
I think that the judgment should be reversed and a new trial should be ordered, costs to abide the event, on the authority of Smith v. Mayor ( 66 N.Y. 295).
BURR, THOMAS, RICH and CARR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.