McKenzie v. City of New York — 119 A.D. 60

Majority

p. 60

James McKenzie, Respondent, v. The City of New York, Appellant.

Second Department,

April 19, 1907.

Headnote

Negligence — injury to property from overflow of sewer — failure, to show - ' negligence.

A. verdict for the plaintiff founded upon the alleged negligence of a municipal . corporation whereby water'backed up through sewers and damaged .the plain. - tiff’s, property cannot be founded upon mere evidence of the flooding of premises of other owners drained by an entirely different sewer system.'

Appeal by the defendant, The City of New York, from a .judg- - ment of the Supreme Court iff favor of the.plaintiff, entered in the office of the clerk of the county-of Kings on the 8th day of'August, ■ - 1905, upon the decision of the court rendered after: a trial at; the Kings-County Trial Term without a jury. -

James D. Dell [John J. Kean and John J. Delany with him oh • the brief], for the appellant; '

KIvjard J. MeCrossin,.iov therespondent.

The action is for damages to personal property caused by an over- . flow from-one of the defendant’s sowers, The plaintiff had j.udg

p. 61

ment. It appears that the water backed up through the house connection and entered the cellar through an opening in the floor eight feet below the curb. The plaintiff testified that the water ■ had not entered the cellar before during, the year that he had occupied the premises. Two witnesses who occupied property in the neighborhood testified that their premises had been flooded on prior occasions' by water entering through the house connections and from the manholes in the street, and a former assistant engineer of the defendant testified that the sewers had overflowed in that neighborhood during heavy rainstorms, biit it is undisputed that the territory concerning which said witnesses testified was drained by what was termed the Wallabout system and that the plaintiff’s premises were connected- with an entirely different system. There is, therefore, no evidence upon. which to base a finding of negligence in any way affecting the plaintiff, and the decision of this court in Ebbets v. City of New York ( 111 App. Div. 364 ) is controlling.

The judgment should be reversed.

Woodward, Jenks and Rich, JJ., concurred. '

Judgment reversed and new trial'granted, costs to abide the event.