98 N.Y. 642, Murphy v. City of Brooklyn

• Citation: 98 N.Y. 642
• Party Name: JAMES MURPHY, Jr., as Administrator, etc., Respondent, v. THE CITY OF BROOKLYN, Appellant.
• Case Date: March 03, 1885
• Court: New York Court of Appeals

Page 642

98 N.Y. 642

JAMES MURPHY, Jr., as Administrator, etc., Respondent,

v.

THE CITY OF BROOKLYN, Appellant.

New York Court of Appeal

March 3, 1885

Argued February 9, 1885.

COUNSEL

John A. Taylor for appellant.

Jesse Johnson for respondent.

The following is the opinion in this case, in full:

'In the years 1869 and 1870 the board of water and sewerage commissioners of the city of Brooklyn caused a sewer to be constructed through Third avenue in that city. The original plan was to construct the sewer through the avenue to Forty-ninth street, and to have its discharge at that point. But when the sewer had been constructed to Twenty-eighth street it was there turned northwardly, at right angles with the avenue, and carried out into Gowanus bay several hundred feet, through a wooden box, and there had its discharge. On the northerly side of the avenue there were houses and fences, and about fifty feet from the side of the avenue near the box there was a hole with water and some sewage therein; and in July, 1882, the plaintiff's intestate, a boy nearly six years old, was drowned in that hole. No one saw how he got into the

Page 643

hole, and how he got into it is left to conjecture. The plaintiff, claiming that this hole was carelessly permitted to remain there and to be covered with sewage, brought this action to recover damages for the death of the boy; and he recovered a judgment, from which the city appealed to the General Term, and from affirmance there to this court.

'The hole was above high water mark, on private property, and precisely how it was caused is not disclosed in the evidence. It may be inferred that it was caused in some way in the construction of the sewer-box, or through its operation. There is some evidence tending to show that by the action of the tides the sewage was driven back in the box, and forced out of its sides through some defects therein, and that the hole may have been thus caused by the action of the tide and sewage.

'The plaintiff could not recover on the theory that the sewer-box was wrongfully constructed from the avenue out into the bay without the authority of law. It was not alleged in the complaint that the box was wrongfully placed there, and the case was not submitted to the jury upon that theory. The construction of the box was not wrongful as to the intestate, and as to him it was not a nuisance...