Kosmak v. . Mayor, Etc., of N.Y. , 117 N.Y. 361 ( 1889 )

Andrews, J.

We think the judgment in this case is clearly right, and little can be added to the satisfactory opinion of the General Term.

The sewer, so-called, from the Ottendorfer house, was constructed by the owner of the premises, with the consent of the city, as a private drain. It never changed its character. When the Ottendorfer premises were purchased for the Brooklyn Bridge the title vested in the city or for the benefit of the city, and was taken with the same rights which the grantor had in the drain. It did not become a public sewer because the municipality became the owner of the property. When the plaintiff obtained permission of the city authorities to connect his premises with the drain, he stood in the same position to the city as he would have stood to Mrs. Ottendorfer if she had remained the owner of the bridge premises and the permission had been obtained from her. She would not have been bound to limit the use of the drain to the water and material then discharged into it from her premises, nor to remove any obstruction therein for the protection of the plaintiff, nor would she be bound to stop using it on notice that the plaintiff’s premises were flooded. The city, on acquiring title to the bridge property, stood in her shoes, and subject to no greater obligation to the plaintiff than would have rested on Mrs. Ottendorfer in the case supposed. Neither she nor the city could willfully or maliciously injure the plaintiff. But the plaintiff under the permit was a mere licensee, and when he found that the water flooded his premises, it was for him to take the necessary measures for their protection. He could not cast the duty upon the city.

There was no evidence that the city adopted the drain as a public sewer, and the evidence on this point would not have been strengthened if the plaintiff had been permitted formally to introduce the deed to the bridge company in evidence, or to show more explicitly that the water discharged into the drain was greater than before the bridge was completed. It was not claimed that any more was discharged into it at any time than it was capable of carrying off if it had not been obstructed. The ten dollars paid for a permit was paid for a license to use the private drain. It imposed no duty on the city to keep it in repair or free from obstruction. The city officers, on being notified, said they would attend to the matter. It seems they did examine and found that the Frankfort street sewer, at the point where the drain entered it, was free. But if they did not perform their promise to the plaintiff this gave him no cause of action. The administrative officers of the city could not by their act convert a private drain into a public sewer, nor impose upon the city an obligation founded upon their promise to repair and remedy the difficulty. The point that the plaintiff was excluded from testifying to what was stated by him in his deposition presented to the Comptroller, is not ground of reversal. It is claimed that the part of his statements in the deposition proved by the defendant bearing upon the correctness of his claim, as to items of damage, as made before the jury, tended to impeach his credibility, and, therefore, may have influenced the jury in determining the credit given to his evidence as to the obstruction being in the Frankfort street sewer, and not in the drain. The alleged impeachment of the plaintiff’s credibility by the statements in the deposition proved by the defendant, was at most very slight. The exclusion of the plaintiff’s evidence in explanation could have had, we think, no material influence on the case. The evidence as to the location of the obstructions very greatly preponderates that it was in the drain and not in the sewer, and the jury could not well have found otherwise, and as, if this was the fact, the plaintiff was not entitled to damages, any discredit cast on his evidence on . that subject was immaterial.

We think there is no error requiring a reversal of the judgment, and it should, therefore, be affirmed.

All concur, except Earl and Peokham, JJ., dissenting.

Judgment affirmed.