#### Mary R. Stoddard *et*al., Resp’ts, *v.*The Village of Saratoga Springs, App’lt.1

*(Court of Appeals, Second Division,*

*Filed June 2, 1891.)*

Municipal corporations—Sewer—Injunction against construction of.

Defendant, by its board of trustees, upon the petition of certain street owners, constructed a sewer through several streets in the village of Sara-toga, then through the private grounds of the United States Hotel, and certain lots to Waterbury brook, which ran through the plaintiffs’ premises, thus emptying the sewerage upon plaintiffs’ premises. *Held,*that it was a public sewer, and that defendant was chargeable with its construction and liable to plaintiffs for so improperly providing or locating the outlet as to causé the sewage to pass from it on to their premises.

Appeal from judgment entered upon order of the general term of the supreme court in the third judicial department, affirming a judgment entered on the report of a referee in favor of the plaintiffs.

The purpose of the action was to perpetually enjoin the defendant from casting the sewage from what was known as the Harrison street sewer on to the premises of the plaintiffs; and to recover damages for the injury alleged to have resulted to them from such cause.

The referee found, that in 1876, the defendant through its board of trustees, constructed a public sewer in the village from the in*684tersection of Walton and Lawrence streets, along the latter street to and across Church street, to and along Harrison street, a distance of about fifteen hundred feet to Division street; thence through private grounds of the United States Hotel and Marvin and Benedict lot to Waterbury brook, which ran through the plaintiffs’ premises; that along the line of the sewer, connection with it was from houses, and street basins were provided to take into it surface water and street washings; these connections and basins resulted in taking into and which passed through the sewer filthy water and obnoxious substances from streets, houses, etc, on to the plaintiffs’ premises, there producing a nuisance and. the injurious consequences complained of by them.

By chapter 673, Laws 1871, provision was made by which a.' main sewer could be constructed in the village of Saratoga Springs, the expense of which to be eventually paid by assessment upon the taxable property of the village; also for putting in lateral sewers connecting with it to be charged by assessment upon those benefited by them; and for permission to owners of adjacent real estate to connect private sewers or drains with them.' By chapter 271, Laws 1874, after, by the first and second sections, repealing and amending the first section of the previous act, further provision was made relative to the construction of, and relating to, sewers in the village, by §§ 3, 4, 5 and 6, as follows:

“ Sec. 3. Whenever a majority of the owners or occupants of premises upon any street or streets, or any section or portion of any street or streets in said village, shall petition the board of trustees of said village to lay a sewer along said street or streets, or any section or portion of said street or streets, clearly designating by maps or other proper description accompanying said petition, the portion of said street or streets and the distance thereon, and the desired course of such sewer, and that said sewer be connected with the creek or main sewer at a point to be designated in said petition, then the board of trustees of said village are hereby authorized and empowered to grant the request, of said petitioners, and to cause a sewer to be laid along such street or streets, or section of street or streets, as set forth in said petition, and connect the same with the creek or main sewer. Said board of trustees may cause the proper surveys, maps, plans- and profiles to be made of said proposed sewér and filed with said board.”

“ Sec. 4. Whenever any petition, as herein specified, shall be granted by said board of trustees, said board shall cause such sewer to be constructed of such material and dimensions as they may adopt after proper consideration. Said board shall cause-plans and specifications of such sewer to be prepared, and shall give at least one week’s notice, daily, in a daily newspaper published in said village, where such plans and specifications can be seen and examined, and shall in such notice invite sealed proposals for the construction of such sewer, to be presented to the clerk of the board. At the end of the time specified in said notice, the board of trustees shall convene and open said proposals, and shall award the contract for the construction of said sewer to the lowest re*685sponsible bidder. Before awarding any contract for the construction of such sewer, the contractor shall execute to the village of Saratoga Springs, in such form and manner as such board shall prescribe, an undertaking or bond in the sum of at least twice the amount of the aggregate of such contract price, with two sureties, who shall duly justify, conditioned for the faithful performance of the contract and the proper construction of such sewer, in conformity with the plans and specifications adopted by said board of trustees.

“ Sec. 5. The cost of constructing such sewer shall be assessed by the board of trustees upon the property adjoining said sewer, and such other property which said board may deem to be benefitted by said sewer, or may at any time enjoy the use of said sewer, said board being guided in making such assessment by the valuation of the property assessed as the same shall appear upon the village assessment roll at the time of such assessment, and said board of trustees shall have power to enforce collection of such assessments in the same manner as other taxes are collected in said village. But in no case shall the property known as 1 Congress Spring Park,’ be assessed for lateral sewers so long as such property shall remain a park, and does not use, and is not benefitted by such sewer.

“ Sec. 6. Said trustees shall prescribe rules for the use of such sewers, and shall have power to prevent any excavations in streets, or otherwise, which shall injure or interfere with the use of such sewers ; and in case any such sewer shall require repairs, said trustees-shall make the same, and charge and assess the cost thereof upon the property enjoying the use of the same, in like manner as the cost of constructing the same was assessed and collected.”

The referee determined that the plaintiffs were entitled to both injunctive relief and damages, which he assessed.

*Edgar T. Brackett,*for app’lt; *John L. Henning,*for resp’ts.

1

 Affirming 33 N. Y. State Rep., 315.

Bradley, J.

The leading proposition urged on the part of the defendant is that the sewer in question is not a public one; and that the defendant is neither chargeable with its construction nor liable for its consequences.

The defendant has for many years been a municipal corporation. And by reference to Laws 1874, chap. 271, it will be seen that upon the granting by the board of trustees of a petition, etc., made in conformity with the provisions of the act, it is made its duty to cause the sewer asked for to be constructed, and, after taking the requisite preliminary proceedings, to award the contract for the work and take security for its performance. Id., §§ 8,4. The construction of a sewer is not only to be in accordance with the plans, etc., prepared by the direction of the board, but the trustees are to prescribe rules for its use, and when repairs are required, to make them, id., § 6; and the cost of construction is to be realized by assessment upon the property benefited, enforced in the manner other taxes are collected in the village. Id., § 5. This could not lawfully be done for work of a mere private nature. The purpose of sewers so constructed is thus necessarily characterized as *686public, and the power is legitimately vested in the corporation to accomplish it in the manner authorized by the statute. It appears by the petition and proceedings following it that the design was to construct the sewer in question pursuant to the provisions of the act of 1874. It is, however, urged that it was not authorized by or constructed in conformity with the provisions of that act, because within the proposed line of it as described in the petition, and on which it was located, was embraced private lands. It is true that the distance of about five hundred of the 2,000 feet of the line of sewer as given by the petition and as constructed was not in any street, but through private grounds, with the consent of the owners. The statute provides only for laying sewers along the streets of the village; and there is no provision in the last mentioned act to appropriate lands elsewhere other than for the purposes of the main sewer mentioned in the second section. It may be that the board of trustees exceeded its authority in granting the petition and in departing from the lines of the streets after laying the sewer 1,500 feet in them, and constructing it through private grounds the other 500 feet to its outlet in Walworth street. In the view taken that question is not necessarily here for determination. For the purpose of enforcing assessménts to pay the cost of the work, it was essential that the proceedings should have been had in substantial conformity with the provisions of the statute from which was derived the municipal authority to do that which was sought to be accomplished.

The present case in not dependent for its support upon the regularity of the proceedings of the village authorities but is to charge the corporation with liability for the consequences of a work alleged to have been performed in a negligent and improper manner. If it were *ultra vires*in such sense as not to be within the scope of the corporate powers of the defendant, the latter would not be answerable for the consequences resulting from it, although the persons causing the work to be done were its officers or agents, and assumed to act as such in doing it. *Mayor*v. *Cunliff,*2 N. Y., 165; *Smith*v. *City of Rochester,*76 id., 506. But that is not' the situation presented here. It was legitimately within the corporate power of the defendant to construct sewers ; and it may be that in attempting to execute it the constituted authorities went to some extent beyond the authority conferred upon the corporation and them as its officers. The referee has found that the trustees were not chargeable with *mala fides.*It may, therefore, be assumed that the general purpose was to execute the power vested in the municipal corporation which they represented in causing the work to be done; and thus acting the defendant may be chargeable with the injury to others resulting from their failure to properly perform the duty which they assumed to discharge, although it may have been occasioned by irregularity or acts on their part in excess of authority. 2 Dillon’s Mun. Corp., § 769 (4th ed.), § 971; Lee v. *Village of Sandy Hill,*40 N. Y., 442 ; *Buffalo, etc., Turnpike Co.*v. *City of Buffalo,*58 id,, 639 ; *Thayer*v. *City of Boston,*19 Pick., 511; *Hawks*v. *Charlemoni,*107 Mass., 414.

*687It may be observed that the sewer was constructed three-quarters of its length along certain streets in the village; and the referee has awarded such damages only as he found was occasioned by sewage which entered the sewer along the streets. This evidently was done upon the theory that the portion of it not laid along the streets was not necessarily under the control of the corporation. This portion through the private lands had the effect to convey the sewage from the other parts of it in the streets to its outlet, thus causing the injury produced by it.

It is unnecessary for the purpose of this review to consider the corporate relation, other than in that aspect, to such portion of the sewer. The sewer within the streets was certainly under the control of the defendant And one of its purposes was to take into it and thence to its outlet whatever was conducted into it by means of lateral drains and sewers from houses, etc., along its ine; and the defendant was liable to the plaintiffs for so improperly providing or locating the outlet as to cause the sewage to pass from it on to their premises. *Noonan*v. *City of*Albany, 79 N. Y., 470; *Chapman*v. *City of Rochester,*110 id., 273 ; 18 N. Y. State Rep., 133.

Reference is made by counsel to *Searing*v. *Village of Saratoga Springs,*39 Hun, 307 ; 110 N. Y, 643 ; 16 N. Y. State Rep., 998, but that case has no necessary application to the one at bar.

There the pipe which conducted the sewage into the plaintiff’s lot was laid on her own land by her consent or request, and she-was at liberty to take it up, and thus remove the cause of her complaint.

Whatever view may be taken of the relation of the corporation to the lower portion of the sewer, the defendant is using it as a conduit to carry the sewage from the sewer laid along its streets to the outlet, and the only outlet provided for its discharge. Ho other question seems to require the expression of consideration.

The judgment should be affirmed.

All concur, except Potter, J., not voting.