Stein v. City Of Newark.

• Decision Date: 07 March 1947
• Citation: 52 A.2d 66
• Parties: STEIN v. CITY OF NEWARK.
• Court: New Jersey Circuit Court

52 A.2d 66

STEIN

v.CITY OF NEWARK.

Circuit Court of New Jersey, Essex County.

March 7, 1947.

Action by Isadore Stein against City for damage to buildings caused by water leaking from city-owned water system. On defendant's motion for directed verdict.

Motion granted.

Julius Stein, of Newark, for plaintiff.

Thomas L. Parsonnet and George B. Astley, both of Newark (Frank J. Cavico, of Newark, of counsel), for defendant.

SMITH, Judge.

At the conclusion of the plaintiff's case the defendant moved for a nonsuit and the Court reserved its ruling on that motion and directed the defendant to proceed with its defense. At the conclusion of the defendant's case, when both sides had rested, the defendant moved for a direction of verdict, which motion is now before this Court.

The plaintiff, Mr. Stein, briefly contends that he was the owner of property at No. 327-329 15th Avenue, Newark, New Jersey and No. 342 Morris Avenue. That the first numbered building contained six family apartments and the second building referred to contained a store, two apartments and some garages. These two buildings had a common wall, common foundation and with a common roof.

In the Spring of 1944 the plaintiff observed that his building had several cracked walls, the windows and doors would not properly close and he thereupon inspected the cellar and he found there the condition to which he has testified, which in effect was that the cellar floor had sunk and that the foundations were no longer holding up the building. The plaintiff thereupon stated that he called in his plumber for the purpose of ascertaining if there was any water from any of the pipes, the sewerage or the plumbing under his control, which caused this condition to these buildings. As I recall his testimony the plumber who was called in stated that there was nothing wrong with the sewerage system or the plumbing, in other words, the water lines, as far as it related to those under the control of the plaintiff, Mr. Stein. The condition did not improve, but became worse and later on Mr. Stein, who seems to me, according to his testimony, was unable to give the actual date, but he said around the middle of May, but according to the testimony of defendant was around the first of June, visited the Building Department of the City of Newark and directed the Building Department to the condition that existed in his buildings and sought from them their advice as to what he should do about the condition of his buildings.

The representative of the Building Department visited these premises and observed the condition in the cellar and observed at that time there was a dampness or water in the cellar; made a report to his superior and subsequently, I think it was on June 13-the letter is in evidence-Mr. Stein was advised by the Building Department that it would be necessary for him, in connection with the building itself, to shore up the building and to arrange for the removal of his tenants.

On June 13, Mr. Stein then brought this condition to the attention of the Water Department of the City of Newark. This was the first time this condition was brought to the attention of the Water Department. The City of Newark, through its Water Department was furnishing water to the houseowners and other private consumers in the city, and in doing so was acting in a private business capacity and not in its governmental capacity and it is bound therefore to exercise ordinary care, that is a reasonable degree of care, in view of the dangers involved which the great mass of ordinarily prudent persons engaged in the same or similar business would and do exercise under like circumstances. For any failure to exercise this degree of care proximately causing injury to another, the City is liable to the same extent that a private person or a corporation operating a water works system is liable; no more and no less.

The defendant is not an insurer of the safety of its water pipe lines. Where the defective condition is not a result of negligent construction but the result of wear and tear, it must appear that the condition which produced the damage complained of had either been in fact brought to the prior notice of the defendant, which is actual notice, or that the condition had existed for such a space of time as would have afforded the defendant sufficient opportunity to have observed the defect. This is called constructive notice.

It would seem to me...