Barton v. City of Syracuse , 1861 N.Y. App. Div. LEXIS 226 ( 1861 )

Morgan, J.

(dissenting.) It may be conceded, I think, that the city is liable in damages for neglecting to keep the street sewers in repair, when the water is set back so as to overflow the adjoining premises. But the right of persons to open a street sewer and connect it with an under drain, should have some limitation. The damages here were occasioned by the water forcing its way into the plaintiff’s cellar through his under drain. It happened after a severe freshet,- and the referee has found that the common council had no notice that the street sewer required reparation. Nor was the plaintiff’s drain built -with the knowledge or assent of the common council, or with notice to the clerk, as required by the city ordinances. I am not ready, therefore, to admit that the city was under any obligation to the plaintiff to repair the street sewer so as to prevent the water from flowing into his cellar through his own drain. The common council had an undoubted right to regulate the manner in which the connection should be made, and if served with notice, might have required the owner to protect it in some way to avoid the danger. But however this may be, the report of the referee fails to find as a matter of fact that the city was guilty of negligence in omitting to repair the Genesee street sewer, before the injury to the plaintiff’s property. I think such a finding absolutely necessary, to sustain a judgment against the city in this case.

[Onondaga General Term, October 1, 1861.

Judgment affirmed.

Bacon, Alien, MulKn and Morgan, Justices.]