#### EVERS et al. v. LONG ISLAND CITY.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Municipal Corporations—Defective Sewers.

Where a sewer maintained by a city is so constructed that it causes water to flow back into cellars connected with it, the city is liable.

Appeal from circuit court, Queens county.

Action by Patrick Evers and Eose Evers against Long Island City to recover for injuries caused by a defective sewer. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

JJ.

Lyman W. Redington, for appellants.

William E. Stewart, for respondent.

DYKMAN, J.

This is an action to recover damages for injuries sustained by the plaintiffs by reason of the negligence of the defendant in the construction and maintenance of a sewer in Long Island City. At the close of the plaintiffs’ case the complaint was dismissed, and from the judgment of dismissal the plaintiffs have appealed.

The plaintiffs are in possession of a house and lot on Flushing avenue, in Long Island City. There is an earthern sewer pipe, 15 or 18 inches in size, in Flushing avenue, and the plaintiffs connected their cellar with this sewer by permission at the time of the erection of their dwelling by a six-inch pipe, which is higher where it runs into the cellar, by two or three feet, than the main sewer pipe. The water-closet of the plaintiffs was in the cellar of the house. The cellar was dry, and the plaintiffs had a stove in it, and used it for a summer kitchen until they were driven out by .the sewage coming into the cellar from the sewer. The Flushing avenue sewer runs from easterly of the plaintiffs’ house westerly to the East river, and carries off the sewrage of a large and thickly-populated district, and receives sewage from premises above and beyond those of the plaintiffs. The testimony tended to show that the main sewer was built by commissioners some years ago, and that they had made a report in writing, and turned over their books and papers to Long Island City. Patrick Gleason, a witness for the plaintiffs, testified that he was mayor of Long Island City for six years, ending January 21, 1893; that his attention was first called to this sewer in 1886, when an alderman of Long Island City; that, as mayor of Long-Island City, he signed contracts for the maintenance and cleaning of these sewers on Flushing avenue; that the city itself cleaned them, and entered into contracts therefor, and the mayor and commissioner of public works signed the contracts; that there was a general complaint for four or five years that filth from the sewer came into the cellars of residents on the avenue; that he caused a map to be made by an engineer appointed by the board of health; that there was a pitch in this sewer both ways some 300 or 400 feet east of the plaintiffs’ premises; that the *826witness recommended the common council to appropriate money to reconstruct the sewer according to the map made recently by the engineer; that the reason filth from the sewer came into the cellar was because the sewer was not properly constructed. Two witnesses testified that they were employed by Long Island City by resolution of the board of aldermen in May, 1893, to do work about this sewer in its reparation. Another witness testified that he had the contract in writing from Long Island City for-cleaning this sewer, and cleaned it for the last time in May or-June, 1893. It appeared from the testimony that there was for-years an outlet in the main sewer some 300 or 400 feet east of the house of the plaintiffs, where there was a connection made that let the excessive sewage run out upon certain waste land on the north side of Flushing avenue; that this outlet was a break or opening in the sewer and the pipe both; that somebody had broken out the brickwork of the manhole at this point about three feet from the bottom, and had inserted an earthen pipe into this opening to let the water or sewage out upon the waste land north of Flushing avenue, thereby relieving the strain on-the main sewer. It further appeared that this outlet was closed up by order of the board of aldermen of Long Island City in May, 1893, by two men employed by the city, who stopped it up with brick and cement. The testimony on the part of the plaintiff also-showed that, before this outlet or break hole was closed up, they only had trouble after very heavy storms, and then only' clear water backed up through their connecting pipes into the cellar;but after the hole or outlet was closed, in May, 1893, a very little-rain forced sewage matter, water-closet deposits, papers, and filth from the main sewer up through the connecting pipe with a rush into the cellar, sometimes two feet in depth. Since May, 1893, this has occurred five or six times, and it sends foul and noxious odors through the house, so that the plaintiffs were unable to use the cellar, except to pass to the water-closet and back, although,, previous to that time, they had used it for a summer kitchen. It appeared that measurements had been taken of the depth of sewage in different manholes, commencing at the premises of the plaintiffs and going east, with the following result: 8 inches, 10-inches, 9 inches, and 12 inches. These measurements included the portion where the witness Gleason testified the sewer pitched both ways, and was not properly constructed. One witness examined the sewer at the locality in question, and went down into it, and found a stump of a broom and chips in it, and the sewage stationary, being about 10 or 12 inches in depth. It appeared that the plaintiff Patrick Evers had notified the mayor, aldermen, health commissioners, city inspector, and commissioner of public works of Long Island City several times of the trouble with the sewer, and requested relief, but nothing was done. The plaintiffs suffered loss from the sewer through damage to personal property, siclmess in their family, and through damage to the household through annoyance and inconvenience.

It appears from this recitation of facts that the sewer in ques*827tion, though constructed originally by commissioners under a special act, was turned over to the city many years ago, and the commission has ceased to exist. The sewer has been owned and controlled by the city ever since. The expense of the sewer was paid primarily by the issuance of certificates, but ultimately by the assessments upon the property benefited. By the charter of the city, power is bestowed upon the common council to regulate the building and reparation of sewers. Laws 1871, p. 905. Under such circumstances, the duty devolved upon the defendant to keep the sewer in repair so far as the property connected with it by private drains is concerned, and is liable for negligence to such persons if they sustain injury which would have been averted if the sewer had been maintained in order. McCarthy v. City of Syracuse, 46 N. Y. 196. As the sewer was constructed and accepted by the city, the negligence in its maintenance created a liability agáinst the city to the injured party. Barton v. City of Syracuse, 36 N. Y. 58. If the sewer is negligently permitted to become obstructed or filled up, so that it causes the water to flow back into cellars connected with it, there is a liability therefor on the part of the municipal corporation for the control of it, and which is bound to preserve and keep in repair the erections it has constructed, so that they shall not become a source of annoyance to others. Dill. Mun, Corp. § 802. Although the duty resting upon the corporation to make streets, sidewalks, and sewers is judicial in its nature, yet, after they are constructed, the duty of keeping them in repair is ministerial, and an omission in its performance imposes liability to the party injured. Hines v. City of Lockport, 50 N. Y. 236. In the case of Smith v. Mayor, etc., 66 N. Y. 295, the sewer was sufficient, but was temporarily ob- ■ structed. It was' there held that the city was liable for negligence alone, and, as there was no proof of notice, the action failed. In this case the proof of notice was ample. The liability of municipal corporations for injuries to property resulting from defective sewers has been maintained by the courts in cases analogous to this, based upon the duty of such corporations to exercise the powers conferred upon them by their charters to construct sewers and make their improvements for the benefit of property owners. Our conclusion, therefore, is that the judgment should be affirmed, with costs. All concur.