Kosmak v. Mayor
| Decision Date | 26 November 1889 |
| Parties | KOSMAK v. MAYOR, ETC., OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, first department.
Action by Emil Kosmak against the mayor, aldermen, and commonalty of the city of New York, to recover damages resulting from a defective drain or sewer. On a verdict and judgment for defendant, plaintiff appealed to the supreme court, general term. The judgment having been affirmed, plaintiff again appeals.
David Leventritt, for appellant.
D. j. Dean, for respondents.
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...
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