#### George H. Paine, App’lt, *v.*The Trustees, etc., of the Village of Delhi, Resp’ts.2

*(Court of Appeals, Second Division,*

*Filed October 8, 1889.)*

Municipal corporations — Streets—Injunction.

An injunction will not he granted to prevent a municipal corporation from maintaining gratings over the entrance to sewers in the gutters of the street because In cases of unusual storms or floods the leaves, etc., gather thereon and cause the water to overflow on the adjoining walk. *(Seifert v.The Oity of Brooklyn,*101 N. Y., 136, distinguished.)

Appeal from a judgment of the general term of the fourth department, affirming a judgment entered upon the decision of the Delaware special term.

*O. W. Smith,*for app’lt; *George A. Fisher,*for resp’ts.

2

 Affirming 40 Hun, 635, *mem.*

*621Haight, J.

This action was brought to restrain the defendants from obstructing the water in the village ditch, and to prevent it from damming up and overflowing onto the plaintiff’s premises.

The plaintiff is the owner of a lot on the southerly side of Main street on which there is a building used as a printing office. On an a-ljoining lot there is a sewer constructed from the street.to the river, from which the surface water flowing in the gutters of the street is conveyed to the river. Over the entrance to the sewer in the gutter of the street is placed an iron grate through which the water enters the sewer. Sometimes, in cases of unusual storms or floods, the leaves and other material gather upon the grate and obstruct the passage of the water through it into the ditch, so that the ditch fills with water which overflows the sidewalk onto the plaintiff’s premises. '

It does not appear that there is any collection of the surface water from the surrounding territory other than that collected upon the surface of the roadbed, or that the amount of water flowing in the gutter in front of the plaintiff’s premises is any greater than that which naturally flowed there. It is conceded that the sewer is sufficient to carry off all the water which accumulates and runs in the street, and it is not claimed but that the grate is of suffi cient size to permit all of the water to pass through it when it is not clogged with leaves or other material. It appears from the evidence that, in case the grate should be removed, it would leave an open hole from the surface of the street into the sewer, which would endanger the safety of the traveling public.

Hnder these circumstances it appears to us that the trial court properly held that the village authorities should not be restrained from maintaining the grate. It is possible that some other device might be arranged so that the water would enter the sewer from the curb under the sidewalk instead of from the bottom of the gutter; but, in that case, if there was no grate maintained, the leaves and other material would be carried directly into the sewer, and might serve to dam up and clog the flow of the water, and thus cause the same difficulty complained of. The grate is the device in general use in our principal cities and villages to prevent sticks, leaves and other material from entering the sewers, and we are not prepared to hold that it should be disapproved of and removed. Some allowance must be made for the judgment and discretion of the municipal officers.

In the case of *Urquhart*v. *The City of Ogdensburg,91*N. Y., 67— 71, Miller, J., in delivering the opinion of the court, says that “ the rule is well settled that where power is conferred on public officers or a municipal corporation to make impirovements, such as streets, sewers, etc., and keep them in repair, the duty to make them is *quasi*judicial or discretionary, involving a determination ás to their necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained, but when the discretion has been exercised and the street or improvement made, the duty of keeping it in repair is ministerial, and for neglect to perform such a duty an action by the party injured will lie.”

*622The case of *Seifert*v. *The City of Brooklyn,*101 N. Y., 136, we do not understand, to be in. conflict with the rule as here stated. In that case the surface water had been collected from a large territory embracing nearly twenty-three hundred acres of land which had not theretofore been drained over the plaintiff’s land, involving the principle which has uniformly 'been invoked to prohibit corporations from constructing sewers whereby the surface'water of a large territory which did not naturally flow in that direction was gathered into a body and thus precipitated upon the premises of an individual, occasioning damage thereto. See also *Mills*v. *The City of Brooklyn,*32 N. Y., 489; *Lynch*v. *The Mayor, etc.,*76 id., 60.

As we have seen in this case there was no collection of surface water other than from the roadbed. The entrance into the sewer was constructed with a grate in accordance with the judgment and discretion of the officers of the village, and even though we were of the opinion some better device might have been adopted, the municipality would not be liable for their errors of judgment.

But we do not understand it to be seriously contended that the grate over the entrance to the sewer is improper or that the damages arise from the maintaining of such grate. The trouble arises from permitting the grate to be covered with leaves and other *debris*which prevents the free passage of the water through it. The duty devolves upon the municipality of keeping its streets and gutters in repair, and this duty is ministerial and not judicial, and if there is a neglect to perform it, an action will lie for damages for the injury sustained.

But no such action is pending for our determination. The plaintiff, instead of bringing an action for damages sustained on the ground of negligence in not keeping the grate or entrance to the sewer open and free for the entrance of the water, has brought an action in equity for an injunction, in which there is no charge ■of negligence in not keeping the sewer in proper repair. The ■authorities upon which the appellant chiefly relies were actions for damages on account of negligence is not keeping the sewer in repair.

vV"e are consequently of the opinion that the judgment should be affirmed, with costs.

All concur, except Follett, Ch. J., not sitting.