Hyperlawhypertext legal database McKenzie v. City of New York 103 N.Y.S. 855

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McKenzie v. City of New York

103 N.Y.S. 855 Court N.Y. App. Div. Decision date 1907-04-19 English

Delivered by MILLER, J.

Contents

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p. 855
(119 App. Div. 60)
McKENZIE v. CITY OF NEW YORK.
(Supreme Court, Appellate Division, Second Department.
April 19, 1907.)

Headnote

Municipal Corporations—Sewers—Negligence—Evidence.
Where plaintiff claimed damages for the flooding of his premises by a city sewer, evidence that premises in the neighborhood, drained by a different system from that with which the plaintiff’s premises were connected, had been often flooded, was insufficient to show any negligence of defendant affecting plaintiff.
[Ed. Note.—For cases in point, see Cent Dig. vol. 30, Municipal Corporations, § 1799.]
Appeal from Trial Term, Kings County.
^ Action by James McKenzie against the city of New York. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
James D. Bell (John J. Kean on the brief), for appellant.
Edward J. McCrossin, for respondent.

The action is for damages to personal property caused by an overflow from one of the defendant’s sewers. The plaintiff had judgment. 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 wate*

p. 856
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; but 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 , 97 N. Y. Supp. 833 , is controlling.

The judgment should.be reversed.

Judgment reversed, and new trial granted; costs to abide the event. All concur.