#### Duryea v. Mayor of New York.

*Municipal corporation*— *New York city*— *construction of deed by—condition ' in deed by—negligence by*— *duty as to sewers.*

The city of New York conveyed to plaintiffs grantor certain water lots to be made land and gained out of the East river. The deed contained the condition that the grantee should, when required thereto, but until then erect according to any ordinance of the city corporation, avenues, wharves or streets, and in addition bulkheads, and that such bulkheads, etc., should not be built without the consent of the grantor. Plaintiff, by permission of the city street commissioner, whose department had, under Laws of 1857, chapter 446, section 23, cognizance of building and repairing and lighting wharves and piers under the ordinances of the common council, built a bulkhead in front of his lots and procedeed to fill in between the bulkhead and shore. At the time plaintiff commenced such work, certain city sewers were in existence, the water and filth from which it was claimed overflowed and washed away the filling and carried away the bulkhead. In an action against the city for such injury, *held,*(1) that an ordinance extending a street, it not being shown that such street embraced the locality of plaintiff’s lots, was not evidence that the erection of the avenues, wharves, etc., had been *required;*and (2) that the street commissioner had no authority to give permission to plaintiff to build the bulkhead. *Held,*also, that the city had a right to impose the condition named in the deed.

*Held*further, that the duty of determining the location and dimensions of sewers being in its nature judicial, the omission to construct one or the failure to make it of sufficient size would create no liability.

Motion for a new trial upon a case and exceptions ordered to be heard at the general term in the first instance. The action was brought by Joseph W. Duryea againt The Mayor, Aldermen and Commonalty of the city of Yew York, to recover for damages to the plaintiff's premises by reason of the improper construction of certain city sewers. The action was tried before Mr. Justice Lawrence and a jury. At the close of plaintiff’s testimony, the court granted a nonsuit. Other material facts appear in the opinion.

*A. J. Vanderpoel*and *F. J. Fithian,*for plaintiff.

The conditions in the deed were void as being repugnant to the grant. 4 Kent’s Com. 130; Willard on Eeal Est. 100-109; 2 G-reenl. Cruise on Eeal Prop., tit. 13, § 20, *et seq.*The grantor could not enforce a forfeiture for non-compliance. *Towle*v. *Palmer,*1 Robt. 449. *513The condition in the deed was substantially performed., Sugd. on Yend. 15 ; 4 Kent’s Com. 128, 130; *Ludlow*v. *New York & Harlem Railroad Co.,*12 Barb. 440; *Nicoll*v. *New York & Erie Railroad Co.,*12 N. Y. 121; *Tinkham*v. *Erie Railway Co.,*53 Barb. 393; *Dakin*v. *Williams,*17 Wend. 449.

Beady, J.

The plaintiff’s claim to compensation in damages rests upon his title derived through a grant made by the defendants, the Mayor, Aldermen and Commonalty of the city of Hew York to the Farmers’ Loan and Trust Company, bearing date the 29th of January, 1847, conveying to them divers water lots, and soil under water, to be made land, and gained out of the East river, or harbor of Kew York, and which included the premises subsequently, and on or about the 1st of February, 1866, aliened to him. The cause of the injury is the alleged building and construction of sewers near the premises of the plaintiff “in so careless and improper a manner ” that large quantities of water and filth ran from them upon such premises, washing away large quantities of earth, and carrying away and destroying a large portion of the bulkhead erected by him.

Upon the trial the plaintiff proved his purchase óf the *locus in quo,*the erection of a bulkhead across the east end of his premises by permission of the street commissioner, and attempted to show that after the completion of the bulkhead.he proceeded to fill in and make land between the shore and the bulkhead. It was also 1 proved that the sewers, one or both of which occasioned the injury complained of, were in existence at the time he commenced to build the bulkhead, and to fill in to make land. KTo evidence was offered, however, to show that the sewers were improperly or carelessly constructed as averred in the complaint. The covenants and conditions in the grant to the Farmers’ Loan and Trust Company, under which the plaintiff necessarily complained, must be resorted to and interpreted in order to ascertain whether he was in such relation to the defendants as enabled him to call upon them to respond, assuming his alleged injuries to have been sustained. The deed to. them, and under which the plaintiff claims, as already suggested, was not an absolute, unconditional grant of the lots described. It contained covenants and conditions to which, the transfer was subservient. The grantee was obliged, when required thereto, but not till then, to erect, according to any resolution or ordinance of the corporation, good and sufficient firm *514avenues, wharves or streets in the direction mentioned, and according to maps referred to, and in addition firm bulkheads, wharves, avenues or streets in front of these streets, avenues or wharves thus particularly mentioned and referred to. It is further covenanted that the true intent and meaning of the grant is that the grantees will not build the wharves and bulkheads, avenues or streets, or any part thereof, or make land in conformity to the covenants mentioned until permission for that purpose should be first had, and obtained from the grantors, the defendants. The deed also contained a condition in reference to the grantees, their heirs or assigns, that if they should make default in the performance of any or" either of the covenants on their part to be observed, performed, fulfilled and kept, then and in such case, every article, clause or thing therein contained should become absolutely void, and the grantors thereafter seized of the premises, discharged of any claim, right or pretense of such grantees.

The prohibition against filling in, to make land, of the intermediate spaces, between the shore line and the line of the streets, avenues, wharves or bulkheads, was not expressly stated¿ but' neither the streets, nor any part of them, were to be made without the requirement contemplated, or the permission given, " for which provision was made. The lots were to be made land and gained out of the East river or harbor of New York, and it is evident that this- could not be done without the barriers which the wharves, streets, avenues, and bulkheads would accomplish against the influence of the tide-waters upon the soil deposited. This may be explanatory of the absence of any express'provision in regard to filling in of the space referred to, and affords a reasonable presumption that this was understood by, and in contemplation of the parties when the deed was made. The filling in to make lands was, in' other words, so necessarily connected with the construction of the streets, avenues, wharves and bulkheads, that it could not be accomplished without uniting them. The course of procedure by the plaintiff illustrates this.. He did' not begin to fill in until he had completed the bulkhead. This fact is shown by the question asked him and rejected. There are other reasons, however, which may be called in to view. The rights of the owners of adjoining- lands — the location of sewers and riparian rights — might require consideration by the defendants, and such directions given as would avoid a clashing of these interests.

*515The defendants were to he consulted that all things considered, the permission might be given with due regard to the rights and interests of the people and of the corporation. The whole scope of the deed seems to be therefore that the water lots should not be made land, until the grantees were required to make them so, or the defendants gave permission to have it done, which, in reference to the time and manner in which it should be accomplished, would in effect be the same. The permission could embody the requirements on the subject.

It is not pretended that the plaintiff was required to fill in to make the land, or that he had permission to do so. It is insisted, however, upon his part, that the ordinance extending East street, and authorizing and directing the adjoining proprietors to make and complete that street, and to fill in and level the spaces between their property and that street, together with the permit obtained from the street commissioner, to build a bulkhead, constitute a general consent to all owners, and a particular consent to him to fill in and make his lots.

The. resolution referred to was passed in December, 1856, and declared that the street should be made, and the filling in completed before the 1st of January, 1860. The plaintiff acquired his title in 1866. The direction contained in the resolution was not to make land of water lots, but to the proprietors of land adjoining or nearest or opposite to East street, to fill in between their property and that street. It was not, therefore, a permission given to the plaintiff or his grantors, unless he or they were such proprietors, assuming that East street, in its locality, embraced the lots of the plaintiff, of which there is no evidence.. The requisition was to fill in and level the space between the property of the proprietors named and East street, and not upon owners of water lots only to make land of them. *Furman*v. *Mayor of New York,*5 Sandf. 40.

If this construction of that resolution be erroneous, it avails the plaintiff nothing, because he has failed to bring himself within its purview. He has not shown that East street embraced the locality of his lots. He was bound to do so, in order to reap the advantages which the resolution furnished. He sought to make the defendants liable for negligence in the discharge of -their duties, and he was obliged to establish his charge by proof. The permission to fill in the lots was not given, therefore, either directly or indirectly, and the filling in was done without authority.

*516The plaintiff is not aided in his difficulties by the permit of the street commissioner. That officer was not authorized to give the permission contemplated. The covenant in the grant declares that the bulkhead must be built on the requirement or permission of the defendants. We have not been referred to any statute or ordinance delegating to the commissioner authority to grant the permission. His powers are defined by section 23 of chap. 446 of the Laws of 1857, which created an executive department denominated the “ Street Department,” and which, it is declared, shall have cognizance of building and repairing and lighting wharves and piers under the ordinances of the common council. This confers no authority other than a supervisory one. It relates to the building of wharves in accordance with the ordinances of the common council. It does not, in letter or spirit, delegate to him the power either to direct the building of bulkheads or wharves by another, or to give permission to another to do it, in accordance with a grant made by the common council to whom he was subordinate.

The common council in 1859, by ordinance, approved June 20th, declared that the street department should have cognizance, among other things, of building, repairing, and lighting wharves and piers; but, at the same time, provided that no expenditure should be made for any work or supplies, relating to any matters within the cognizance of the street department, unless authorized by the common council, except when necessary, and then only to the extent of $250.

These powers relate to expenditures by the corporation — to buildings by them at their expense, and to them only; and even in such cases their authority must be sought and exercised, and their sanction given. The building of a bulkhead by some other person under contract with them for that purpose, and as they shall direct or allow, is not within the cognizance of the street commissioner until recognized by them as an act to be done. He cannot determine the time when, or the manner in which that covenant shall be performed. He cannot, in other words, build a bulkhead on his own authority or allow one to be built.

It thus appears that the authority to grant permission was neither conferred by ordinance nor by statute. The plaintiff was dealing with a municipal corporation possessing extensive powers, many of which it could not barter away by contract. The conditional character of the grant itself gave him notice of their continued domin*517ion over the aliened area. His rights were* subordinate to the legislative control of the defendants acting within the powers conferred upon them in that respect. It was obligatory upon him, therefore, when he sought privileges, to see to it that he obtained them from the proper source — the ruling authority. He did not do so, and his acts were unlawful.

If, however, we resort to the permission itself given by the street commissioners, as a justification for the plaintiff’s proceedings, we find that it was limited, in terms. It gave the plaintiff authority to build a bulkhead, but expressly declared, that the same was not to be filled in behind, until directed by the superintendent; and thus the defendants, even through their officer, maintained the right to determine the time for filling in.

There is no force in the further suggestion on this subject, that the conditions in the deed to the Farmers’ Loan and Trust Company are. repugnant tp the grant, void, and therefore of no binding validity. The answer to that proposition has been already stated, and it is, that the defendants, being a municipal corporation, with legislative powers in reference to streets and avenues, and wharves, could make no contract limiting them, and could, therefore, impose a condition on any grant embracing such subjects, with reference thereto, not inconsistent with the law of the land.

There is, however, a further answer, and that is, that the defendants are not seeking to enforce a condition against the plaintiff. He is the actor, not they. He seeks to compel them to pay him for injuries which occurred to him by reason of his own' unauthorized acts, and he must fail. Whether a court of equity would relieve him, if the defendants were endeavoring to destroy his grant, is another question, and one we are not called upon to discuss.

It may be said in addition, and in conclusion, that the case is also deficient on the question of negligence, in regard to the construction of the sewers. The duty of determining the location and dimensions of sewers is, in its nature, judicial, and the omission to construct one, or the failure to make it of sufficient size, creates no liability. *Mills*v. *City of Brooklyn, 32 N.*Y. 489; *McCarthy*v. *City of Syracuse,*46 id. 194. Although the obligation to construct it properly and keep it in repair, being ministerial, negligence in its performance renders the city liable for damages which may result therefrom. Id.

The judgment should be affirmed. *Judgment affirmed.*