Hyperlawhypertext legal database Jung v. City of New York 116 N.Y.S. 368

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Jung v. City of New York

116 N.Y.S. 368 Court N.Y. App. Div. Decision date 1909-04-23 English

Delivered by RICH, J.

Contents

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p. 368
JUNG v. CITY OF NEW YORK.
(Supreme Court, Appellate Division, Second Department.
April 23, 1909.)

Headnote

Municipal Cobpobations (§ 827[1] )—Subface Wateb in Sibeets—Liability fob Damages to Pbopebty.
A city was not liable for damages to real property abutting op a street through surface water flowing down the street, where that was the natural course. of drainage and the city in no way interfered with the natural surface water course or exercised any authority over the street.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1772; Dec. Dig. § 827.*]
Appeal from Trial Term, Kings County.
Action by Frederick Jung against' the City of New York. Judgment for defendant, and plaintiff appeals.
Affirmed.
Argued before WOODWARD, JENKS, GAYNOR, and RICH, JJ.
Jesse Fuller, Jr., for appellant.
James D. Bell, for respondent.

The plaintiff appeals from a judgment dismissing his -complaint in an action brought to recover damages to real property, in consequence of the alleged negligence and carelessness of the defendant in failing to construct sufficient sewers in Jamaica avenue and the careless and negligent management and maintenance of those existing, by reason of which the contents of said sewers, together with ■surface water, flowed upon the plaintiff’s property, which was situated on Morris avenue, 450 feet east, of Jamaica avenue. Morris avenue is an unpaved street, and has no curb or sewers. Jamaica avenue is pav•ed with brick, and has a stone curb, but no sewers extending through it. Surface water from the latter avenue, at the point where Morris •avenue intersects it, flowed into and through Morris avenue upon the plaintiff’s property. The evidence tends to show that this was the natural course of drainage. There was no proof of any discharge of sewage and no satisfactory evidence tending to establish liability on the ■part of the defendant for the flow of surface water complained of.

In Bastable v. City of Syracuse, 8 Hun, 587 , and in Byrnes v. City of Cohoes, 67 N. Y. 204 , cited by the appellant, and upon which he relies, there was proof that the defendants changed and diverted the ■course and flow.of surface water, collecting it in the street on which ■plaintiff’s property was located, from which it flowed upon the premises, for which wrongful diversion, collection, and drainage the defendants were held liable. In the case at bar there is no proof that the ■surface water ever flowed in any other direction or course than through Jamaica avenue to its lowest point, and thence through Morris avenue, -or across the land now occupied by that avenue, before it was laid otit as a street; and it is not shown that the defendant had anything to do with this street, or ever exercised any authority over it. There is no proof that the defendant in any manner interfered with or surcharg-ed the natural surface water course or volume. In Gravey v. City of New York, 117 App. Div. 773 , 102 N. Y. Supp. 1010 , the flooding was

p. 369
caused by a break in a sewer. In Noonan v. City of, Albany, 79 N. Y. 470 , 35 Am. Rep. 540 , the surface water and sewage of a large territory was collected and discharged through artificial channels, in a solid body, at a given point, from whence it flowed on plaintiff’s land; and in Seifert v. City of Brooklyn, 101 N. Y. 136 , 4 N. E. 321 , 54 Am. Rep. 664 , sewers were constructed within an area or district which included plaintiff’s property, which were inadequate and insufficient to properly carry off the sewage and water collected in and discharged through them, by reason of which the contents were forced through the manholes and inundated plaintiff’s property. The mere statement of these facts is sufficient to establish that the rules declared in the cases-cited to do not establish the liability of the defendant in the case at bar, in which the facts upon which such decisions are based are wholly lacking.

The judgment must be affirmed, with costs. All concur.

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