Sundheimer v. City of New York

• Decision Date: 24 November 1903
• Parties: SUNDHEIMER v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

176 N.Y. 495

68 N.E. 867

SUNDHEIMER

v.CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 24, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Henry Sundheimer against the city of New York. From a judgment of the Appellate Division (79 N. Y. Supp. 278) affirming a judgment for defendant, plaintiff appeals. Reversed.

Augustus Van Wyck and Jacob Friedman, for appellant.

George L. Rives, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

BARTLETT, J.

This action was brought to recover for injury to personal property caused by the flooding of the premises No. 716 East 169th street, between Washington and Park avenues, in the borough of the Bronx, city of New York, on the 24th day of August, 1901. The sole question presented by this appeal is whether the plaintiff offered any evidence that should have been submitted to the jury. The plaintiff, in attacking the judgment dismissing the complaint,is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in his favor. Ladd v. AEtna Ins. Co., 147 N. Y. 478, 482,42 N. E. 197;Higgins v. Eagleton, 155 N. Y. 466, 50 N. E. 287;Ten Eyck v. Whitbeck, 156 N. Y. 341, 349,50 N. E. 963;Bank of Monongahela Valley v. Weston, 159 N. Y. 201, 208,54 N. E. 40,45 L. R. A. 547;McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66, 60 N. E. 282;Place v. N. Y. C. & H. R. R. R. Co., 167 N. y. 345, 347,60 N. E. 632. In the latter case the court said: ‘The defendant, in its effort to sustain the judgment, is confronted by the rule so frequently laid down in this court that we have nothing to do with the weight of evidence; that, if a question of fact is fairly presented, it should have been submitted to the jury. In a very recent case (McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66 ) this court reviewed the authorities and approved the rule laid down in Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671, as follows: ‘It is not enough to justify a nonsuit that a court on a case-made might, in the exercise of its discretion, grant a new trial. It is only where there is no evidence in law, which, if believed, will sustain a verdict, that the court is called upon to nonsuit, and the evidence may be sufficient in law to sustain a verdict, although to greatly against the apparent weight of evidence as to justify the granting of a new trial.’ In Bagley v. Bowe, 105 N. Y. 171, 179 [11 N. E. 386,59 Am. Rep. 488], the rule is thus stated by Judge Andrews: ‘The trial court or the General Term is authorized to set aside a verdict and direct the issue to be retried before another jury, if, in its judgment, the verdict is against the weight or preponderance of evidence; but in a case which of right is triable by a jury the court cannot take from that tribunal the ultimate decision of the fact, unless the fact is either uncontradicted or the contradiction is illusory, or where, to use a current word, the answering evidence is a ‘scintilla’ merely.'' Stated in brief, the plaintiff sought to recover upon three principal grounds: (1) That the whole sewer system involved in this action, which is known as the ‘mill Brook Watershed,’ containing from 1,500 to 2,000 acres, was inadequate both in original construction and also in maintenance; (2) that the catch-basins were insufficient in number and size; (3) that the catch-basins and sewers were negligently allowed to remain in an improper condition, by reason of being clogged with earth, sand, and other foreign matter to such an extent that they were incapable of carrying off the water in heavy rain storms. The contents of the sewer in East 169th street floows westwardly into what is known as the ‘Webster avenue trunk sewer,’ which runs southerly for six miles, and empties into the Bronx Kills at the east mouth of the Harlem river. The Webster avenue trunk sewer terminates some two miles north of the Harlem river, at which point it discharges into the Brook avenue sewer. The trunk sewers were constructed in sections, and at different times. The Brook avenue was completed to 165th street in 1879; the Webster avenue to 184th street in 1885, and to 205th street, the northerly limit of the watershed, in 1899. In the spring or summer of 1900 the Williamsbridge sewer system, covering several hundred acres, and not being a part of the Mill Brook watershed, was...