59 N.Y. 500, Nims v. City of Troy

Citation:59 N.Y. 500
Party Name:HENRY B. NIMS, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF TROY, Appellants.
Case Date:January 19, 1875
Court:New York Court of Appeals
 
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59 N.Y. 500

HENRY B. NIMS, Respondent,

v.

THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF TROY, Appellants.

New York Court of Appeal

January 19, 1875

Argued Dec. 16, 1874.

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COUNSEL

R. A. Parmenter for the appellants. The liabilities of cities to private persons for injuries of the character complained of, arise from the performance or non-performance of some ministerial act. (Wilson v. Mayor of N.Y. 1 Den., 595; Cole v. Trustees of Medina, 27 Barb., 218; Kavanagh v. City of Brooklyn, 38 Id., 232; Mills v. City of Brooklyn, 32 N.Y. 489; Hines v. City of Lockport, 50 Id., 236; Dil. on M. Corp., § § 799-802; Carr v. North Liberties, 35 Penn. St., 324; Grant v. Erie, 69 Id., 420; Child v. Boston, 4 Al., 41.) The city is not responsible for the wrongful and unauthorized act of Teson in obstructing the sewer by the cross-wall. (Requa v. City of Rochester, 45 N.Y. 135; Hume v. Mayor of N.Y. , 47 Id., 639; Griffin v. Mayor of N.Y. 5 Seld., 458-461; 3

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Daly, 147; Dillon, § § 767, 789, 790; Sprague v. Wooster, 13 Gray, 193.) In case of an obstruction caused by the elements, which produces an injury, a corporation will not be liable unless neglect is shown, after knowledge on its part of the obstruction. (Shepherd v. Inhab. Chelsea, 4 Al., 113; Stanton v. City Springfield, 12 Id., 566; Smith v. City Lowell, 6 Id., 39; Rowell v. City Lowell, 7 Gray 100, 104; Dillon, § 797.) Bolton had no authority over the sewers, and could not delegate any to Teson. (Dillon, note to § 176.)

Esek Cowen for the respondent. The city was responsible for the condition of the sewer, and is liable for the damages suffered by plaintiff. (White Lead Co. v. Rochester, 3 N.Y. , 463; Requa v. Rochester, 45 Id., 129; Barton v. Syracuse, 36 Id., 54; McCarthy v. Syracuse, 46 Id., 194; Wendell v. City of Troy, 4 Keyes, 272.)

ALLEN, J.

The discrepancies alleged by the appellants between the general report of the referee and his special findings in response to the requests of the counsel for the defendants, are seeming rather than real. There is in truth nothing in the special findings inconsistent with the material facts embodied in the original report upon which the recovery was had and judgment given; certainly nothing to overthrow or detract from the force and effect of those facts as found and reported. Both parties allege, what is clearly proved and found by the referee, that the sewer known as "crooked sewer," passing through and across the plaintiff's premises, constituted the channel and outlet of a natural stream having its source in "College pond."

This sewer was constructed for a part of the distance, including the portion upon the plaintiff's premises, through a deep ravine and had been built by the respective owners of the lands over and through which it passed, and by the city of Troy under and through the public streets and alleys of the city, occurring in its course. This "crooked sewer" after it left the premises of the plaintiff, crossed Federal

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street and several other streets of the city, and passed through a part of Jacob...

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