#### EDWARD McCAFFREY, Plaintiff, *v.*THE CITY OF ALBANY, Defendant.

*Municipal corporation*— constructing *sewer on private lands*— duty *of city as to repair.*

Tlie city of Albany entered upon a number of contiguous lots, by consent of tbe owners thereof, and constructed a box drain, which was used by the owners and occupants of said lots as a public sewer, and subsequently the city repaired the said drain. *Held,*that these facts imposed no liability upon the city to keep the said drain in repair, or remove obstructions therefrom, as it was laid upon private property, and the city had no right to enter upon the lots without the consent of the owners

Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a Terdict in favor of tbe plaintiff.

Tbis action was brought to recover damages sustained by tbe plaintiff, occasioned by tbe discharge upon bis lot, from drains, of large quantities of water, dirt and filth. Tbe plaintiff’s lot was situated in tbe city of Albany, on Yan "Woert street, which runs along tbe bottom of a ravine towards tbe Hudson river. At some distance up tbe ravine, a sewer in Lark street discharged its contents from tbe side of tbe ravine, and it was claimed by tbe plaintiff that tbe place of discharge was negligently chosen, and that tbe water coming from tbe sewer ran upon plaintiff’s lot and injured it. It was also claimed that tbe plaintiff bad been injured by tbe omission of tbe city to repair a drain which ran through bis lot. It appeared that, prior to 1863, a box drain bad been laid, partly by tbe city and partly by private owners, from tbe east bounds of tbe city to Yan Woert street; that about that time tbe city, at tbe request, and by tbe consent, of tbe owners of a number of tbe lots on that street,constructed a drain across tbe street, and up tbe same, upon tbe private property of such owners, to what was known as Shepard’s lake, tbe drain being wholly upon private property, except where it crossed tbe street. It was also claimed that tbe city bad, subsequently, at tbe request, and by tbe consent of certain of tbe owners, entered upon their lots and repaired tbe same. It was insisted by tbe city, in tbis action, that, as tbe drain was situated upon private property, it was not bound to repair tbe same.

*614
      *Pa/rlcer da Countryman,*for tbe plaintiff.

'Whenever municipal corporations have assumed the control and management of drains constructed over the lands' of private persons, or built by individuals in the public streets, they have been held to the same measure of responsibility as in cases arising from the use of ordinary drains.

*(Wendell*v. *Mayor of Troy,*4 Abb. Ct. of App. Dec., 563 ; *Mims*v. *Mayor of Troy,*59 N. Y., 500; *done*v. *Qity of JTa/rtford,*28 Conn., 364.) Having constructed the “ creek drain,” with the consent of the persons owning the land, and assumed the control of it, the city was bound to keep it in proper repair and free from obstructions, and for any negligence in these respects, resulting in damages, the corporation is liable. *(Barton*v. *City of Syracuse,*37 Barb., 293; S. C., 36 N. Y., 54; *Rochester White Lead Oo.*v. *Qity of. Rochester,*3 id., 463.) Notice was repeatedly given to the city of the condition of the drain, although none was necessary. *(Ba/rton*v. *Qity of Syracuse, supra ; McCarthy*v. *Qity of Syracuse,*46 N. Y., 194.) If there were no other provisions, this power over the creek drain would be derived from the duty imposed on the city to preserve the public health and to prevent and abate nuisances. (37 Barb., 293, 297; 36 N. Y., 55; Wood on Nuisances, § 741, and cases there cited.)

*Abraham Lansing,*for the defendant.

A drain built on land in which private owners retain all their rights of property, belongs to the private owners, and is subject to their control. No statute, custom or rule of law applicable to the city of Albany authorized or authorizes it to construct or maintain such a drain at the expense of its citizens, *(The People*v. *Harmes,*49 N. Y., 591, 593; 1 Dillon on Munic. Corp, 89.)

LearNed, P. J.:

By the charge of the learned justice the plaintiff might recover on either of two grounds: First, for negligence in terminating the Lark street drain where it was terminated; second, negligence as to keeping the (so called) Yan Woert street drain in repair.

We see no reason to question the first of these grounds. *(Byrnes*v. *Cohoes,*12 S. C. N. Y., 602.)

The second is more doubtful. This Yan Woert street sewer, or *615drain, was not bnilt witbin tbe line of tbe street, except where it crossed tbe street from tbe north to tbe south side. It was bnilt on tbe land of private persons. Parts of it were bnilt by tbe owners of tbe property. Subsequently tbe city, with tbe consent of tbe owners, extended this drain on private property, through tbe plaintiff’s lot and through lots higher up, to what is called Shepards’ lot.

' This drain appears to have been used by tbe owners of tbe lots through which it ran. They toot off tbe covers of tbe box drain and erected privies directly over it. .

In regard to this drain, the court charged that if it was built by the city with the consent of the persons over whose land it passed, and the city had occupied it and controlled it as a city sewer, then the city was bound to exercise the same care over it as over the other sewers of the city. And if they were bound to keep it in repair, and were negligent, then the question would be the question of damages.

Now it may be trae that if the city, with the consent of the owners, constructed this drain, a box drain, and constructed it negligently, and thereby caused injury to the plaintiff, they might be liable. But can the fact that the city constructed and even repaired this drain with the consent of the owners make the city hable to keep it in repair ? So that for mere negligence in regard to repairs the city could be hable. What right would the city have to go on the premises of private persons to repair this drain ? Unless the city had the right to enter on the premises where the drain lay (that is, the premises of a large number of private owners, as appears from the map), how can they be hable for a neglect to repair. It is not to be held that the city was bound to do an act which they could do only by the consent of many persons.

In the ease of *Nims*v. *Troy*(59 N. Y., 500), an affirmative act had been done under the authority of the city by one Teeson, which directly obstructed the drain. It does not appear that this act was done on private property, or that it would have been necessary to go upon private property to remove the obstruction thus caused.

The case *In re Ingraham*(64 N. Y., 310) does not seem to apply here. The question there was as to the validity of an assessment. The sewer was laid within the line of the street. Even if the city had not acquired title to the street, yet, if the sewer had been laid *616by consent of tbe parties, it was held that Reassessment was not invalid.

But in this present ease, all that appears is that the city had built this box drain and had repaired it. These facts do not, of themselves, impose a duty on the city to keep it in repair where, being on private property, it is private property itself.

As the case was submitted to the jury upon both of these grounds of liability above stated, there must be a new trial, costs to abide the event.

Present — Learned, P. L, Bookes and Boardman, LJ.

New trial granted, costs to abide event.