Siefert v. City of Brooklyn

• Decision Date: 19 January 1886
• Citation: 4 N.E. 321,101 N.Y. 136
• Parties: SIEFERT v. CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 136

4 N.E. 321

SIEFERT

v.CITY OF BROOKLYN.

Court of Appeals of New York.

Filed January 19, 1886.

John A. Taylor, for appellant.

Wm. C. De Witt, for respondent.

RUGER, C. J.

The defendant in this case invokes the principle exempting municipal corporations from liability for damages occasioned through the exercise of judicial functions by its officers as a defense to the action. The cases on the subject are by no means harmonious, and render it difficult to deduce from them any general rule, founded upon principle, which clearly marks the line of distinction between liability and exemption therefrom. We have, however, been unable to find any case in this state going far enough to sustain the contention of the appellant.

Here certain officers of Brooklyn were constituted by statute commissioners of sewage and drainage, with power to devise and frame a plan of drainage and sewerage for the whole city upon a regular system, and, upon the adoption of a plan, to proceed to construct such of the drains and sewers as the public health, convenience, or interest should demand, or so much thereof as might be necessary. Chapter 521, Laws 1857. By chapter 136 of the Laws of 1861, the commissioners were further empowered, whenever it became necessary, to construct a drain or sewer in any street or avenue, for the purpose of preventing damage to property or to abate a nuisance; and if the same was not in accordance with any plan already adopted, to construct temporary sewers in certain cases, in a manner to avoid such damages or abate such nuisance. Under the authority conferredby these acts, the commissioners, prior to the year 1868, established a certain drainage district, covering a surface of nearly 2,300 acres of land, embracing within its limits a territory not theretofore drained, over the lands of the plaintiff, situated in the same district, and which contemplated the construction of a main sewer through certain avenues and streets, into which it was designed that lateral sewers, intersecting the whole district, should empty, as they should be from time to time thereafter constructed, for the convenience of the people desiring them. In pursuance of this plan, the main sewer referred to was built in 1868, and subsequent to that time various lateral sewers were from time to time, between 1868 and the time of the trial, in 1884, constructed, and connected with said main sewer. Within a short time after the completion of the main sewer, actual use demonstrated that it had not sufficient capacity to carry off the accumulations of water and matter turned into it, and the result was that, at times of heavy rain and melting snow, the collected sewage, being obstructed in its flow, forced through the man-holes, and inundated the district in which plaintiff resides, inflicting serious injury to his property. The inundations commenced nearly 10 years previous to the trial, and increased in frequency and severity as new lateral sewers were from time to time built and connected with the main trunk, until finally they occurred as often as eight or ten times a year, and became well known to the officers of the corporation. Notwithstanding this fact, the corporation has continued to build and attach lateral sewers to the main trunk, and increased from year to year the evil produced by the defects of the original plan.

From this review of the facts it would seem that the case is not brought within the principles decided in the authorities referred to by the appellant. The immunity of a municipal corporation from liability for damages occasioned to those for whose benefit an improvement is instituted, by reason of the insufficiency of the plan adopted to wholly relieve their wants, or on account of a neglect of the municipality to exercise its power in making desired improvements, and other like circumstances, is quite clearly established by the cases. The liability in such cases has been generally, if not always, predicated upon the duty which the corporation owed its citizens to exercise the power conferred upon it to build streets, sewers, etc., for the convenience and benefit of its property owners, and its exemption from liability was based upon the limitations necessarily surrounding the exercise of such power and the judicial character of the functions employed in performing the duty. The question in Mills v. Brooklyn, 32 N. Y. 495, as stated by Judge DENIO, was that ‘the grievance of which the plaintiff complains is that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of certain capacity was built, but it was insufficient to carry off all the water which came down in a rain storm, and the plaintiff's premises were to a certain extent unprotected. Their condition was certainly no worse than it would have been if no sewer at all had been constructed.’ It was there held that the corporation was not liable. The case of Smith v. The Mayor, 66 N. Y. 295, related to a sewer of sufficient capacity, but which was temporarily obstructed by a deposit of mud and sand, of which the corporation had no notice, and an overflow injuring plaintiff resulted. It was held that the corporation was liable for negligence alone, which could not be predicated upon the facts established. McCarthy v. City of Syracuse, 46 N. Y. 194, was a similar case, and the same principle was there established; the city being charged with liability for an injury occurring through its neglect to repair a sewer after a lapse of time warranting the presumption of notice of the defect. In Wilson v. The Mayor, 1 Denio, 598, the damages were occasioned by surface water, naturally falling upon the plaintiff's premises, but prevented from flowing off by the changes made in grading its streets by the city. It was held to owe no duty to its citizen to furnish drainage for the water naturally collected on his premises, and that no liability resulted from the change in the street grade made under statutory authority. It was further said that the power of the corporation‘to make sewers and drains is clear; but it is not their duty to make every sewer or drain which may be desired by individuals, or which a jury might even find to be necessary and proper.’ Lynch v. Mayor of N. Y., 76 N. Y. 60, was also a case where the natural flow of surface water and drainage was obstructed by the exercise of municipal power in grading, pitching, and raising the public streets, and the city was declared free from liability for the damages incidentally occasioned to property in consequence of the obstructed drainage, and its omission to build drains for the convenience of the citizen. Its liability, however, in a case like the present, was conceded in the opinion delivered by Judge EARL. In Hines v. Lockport, 50 N. Y. 236, the plaintiff was injured by defects in a public street. It was held that the duty resting upon the corporation of building, opening, and grading streets, sidewalks, sewers, etc., was judicial; but that after they were constructed the duty of keeping them in repair was ministerial, and from an omission to perform that duty liability arose. Urguhart v. Ogdensburg, 91 N. Y. 71, was also a case of injury arising from a defective sidewalk, and the principle there laid down is in harmony with the cases above considered.

We have thus referred to the principal cases cited by the appellant, and find no warrant in them for the doctrine that a municipal corporation, in the exercise of its discretionary or judicial power of determining when, where, and how to make improvements, such as streets, sidewalks, sewers, etc., has the right to do so upon a plan which substantially involves the appropriation by it of...