Beyer v. City of New York , 126 N.Y.S. 455 ( 1910 )

. JenksJJ.

The Obligation upon the defendant was due care do prevent the overflow of the' sewer through the house connection of plaintiff’s' premises. The.evidence, does-.not show that there was fault in the construction-of the sewer, or negligence, either in the. .omission to remove the obstruction which caused the overflow, after notice thereof, actual or constructive, Or in the inspection of the sewer system. The- evidence" indicates that the “'backing -up” óf the, sewage was caused by a stoppage- of sticks used by children when. in the street at play in the game of tip cat. It does not appear- how long this stoppage had existed, and consequently. that any reason^ able inspection, such as. could be exacted by the most rigid rule imposed upon a municipality in' charge of so great • a system, could have revealed the obstruction.- The overflow was an isolated, instance.. •

I think that the- judgment should be reversed, and- a new trial should'be ordered, costs to-'-abide the. event,-on the authority of Smith v. Mayor (66 N. Y. 295).

• Burr", Thomas, Bioh and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and" new -trial ordered, costs to abide the event.