Uppington v. City of New York

The plaintiff is the owner of the three-story basement house situated between Sumner and Lewis avenues, on Greene avenue, known as “No. 770,” in the borough of Brooklyn. In 1894, the officials of the city of Brooklyn, charged with the duty of putting in and maintaining sewers, determined that it was necessary to construct certain sewers known as “relief sewers,” to take care of the water in certain districts of the city. In the construction of section 1 of this relief sewer, the city made use of Greene avenue, making an open cut some 17 or 18 feet wide, into which the sewer was laid. In making this cut, the earth settled to some extent, and the houses along this street were more or less injured, the plaintiff claiming damages of $1,514.58. The case was allowed to go to the jury, and resulted in a verdict of $500 for the plaintiff. Defendant appeals to this court, raising the questions: (1) ‘Was not the injury to the plaintiff’s property damnum absque injuria, merely consequential, and without fault or negligence on the part of the city and the contractor?” and (2) “Is the city responsible for negligence of the contractor?” All other exceptions are waived.

It is conceded that the property of the plaintiff does not extend to the center of the street, but is bounded upon the line of the street. If we assume this highway to have been the property of an individual, there would be no doubt of the absolute right of the owner, without negligence, to make any excavation which should be necessary to the best use of the property for his own benefit, even though it should result in injury to the property adjoining, and the rule is not different because the fee to this street was in the then city of Brooklyn. Beyond this, however, the doctrine is well established in this state that public officers lawfully employed in making public improvements, and corporations engaged in work of a public nature, authorized by law, are not liable for consequential damages occasioned by it to others, unless caused by misconduct, negligence, or unskillfulness. Atwater v. Trustees, 124 N. Y. 602 , 608, 27 N. E. 385 . That the city officials were authorized by law to make this improvement is not disputed; and it is not within the province of this court to inquire whether, in the discharge of this duty, the officials made the best possible selection of routes, nor is there any presumption of negligence growing out of the fact that Greene avenue, rather than some other highway, was selected to carry this new line of sewers. There was some-evidence in the case from which the inference might be drawn that there was a better method of putting in this sewer than by the open-cut system, but we look in vain for any evidence that the system adopted by the city was not reasonably safe, or such as

There was some evidence from which the jury might properly draw the inference that there was negligence in the manner in which the details of the work were carried out, and it is upon this branch of the case that the judgment must be sustained, if at all. The question arises, then, whether the defendant, by its contract with James J. Moran & Co., who put in the sewer, so far retained control of the contractors as to become responsible for their neg; ligence. The law is well settled that an independent contractor, except in those cases where the work to be performed is intrinsically dangerous, or where it is unlawful, or where it creates a nuisance, is answerable to third persons who may suffer damages through his negligence. Engel v. Club, 137 N. Y. 100 , 104, 32 N. E. 1052 . The case at bar is not within any of the exceptions, and if, under the provisions of the contract, the contractors were free to control the work in those details under which the alleged negligence arose, then the defendant is not liable to this plaintiff, and she cannot recover in this action.

A careful examination of the contract under which this work was done fails to disclose any reserved power to the defendant to control the manner of executing the work, except in so far as the immediate interests of the defendant were concerned. Its super-' visory powers related to the character of the work performed for the then city of Brooklyn, and not to the relations of the contractors with third persons. As to those, the contract, which defines the duties which the contractor owes (Engel v. Club, supra), provides that “the contractor shall, at his own expense, shore up, protect, restore, and make good, as may be necessary, all buildings, walls, fences, or other properties which may be disturbed or injured during the progress of the works, and the said contractor will be held responsible for all damages which may happen to neighboring properties.” Again, it is provided that “the said party of the second part further agrees to do everything necessary to protect, support, and sustain the buildings on both sides of the street,” etc.; and that, “in case any damage or injury shall or may result to the said buildings, * * * through or by reason of any negligence, carelessness, or want of skill on the part of said party of the second part, the said party of the second part shall become liable to pay such amount as shall or may be sufficient to cover the expense and damage occasioned by such negligence, carelessness, or unskillfulness; and such amount may, at the option of the party of the first part, be charged against the said party of the second part, and may be deducted from any sum or sums due or payable to the said party of the second part on account of this contract, and

The judgment should be reversed.

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