Uppington v. City of New York

• Citation: 165 N.Y. 222,59 N.E. 91
• Parties: UPPINGTON v. CITY OF NEW YORK.
• Decision Date: 08 January 1901
• Court: New York Court of Appeals

165 N.Y. 222

59 N.E. 91

UPPINGTON

v.CITY OF NEW YORK.

Court of Appeals of New York.

Jan 8, 1901.

Appeal from supreme court, appellate division, Second department.

Action by Mary T. Uppington against the city of New York. From a judgment of the appellate division (60 N. Y. Supp. 1150) affirming a judgment in favor of defendant, plaintiff appeals. Affirmed.

This action was brought by an abutting owner upon Greene avenue, in the borough of Brooklyn, to recover damages alleged to have been sustained from injuries to her house through the construction of a sewer by means of an open trench in said street. The sewer is known as a ‘relief sewer,’ laid to carry off surface water which after heavy storms flooded a portion of the city quite remote from the plaintiff's property. Upon the trial there was evidence tending to show that the trench dug for the purpose of laying the sewer caused the ground to settle in front of the plaintiff's premises and injured her house to the extent of $1,500, as claimed by her, although the jury upon the first trial assessed her damages at the sum of $500. The verdict was set aside, however, upon appeal, and a new trial was granted, on the ground that she had not made out a cause of action. Upon the second trial, which is now under review, the same facts appeared, and at the close of all the evidence the trial judge directed a verdict for the defendant. Greene avenue is a public street 70 feet wide, and 35 feet from curb to curb. It is well built up with dwellings upon either side, ranging from 2 1/2 to 3 1/2 stories in height. The most of the buildings stand back 10 feet from the line of the street, while some, including that of the plaintiff, stand upon the line. The soil under the street is compact gravel and sand, and contains bowlders, some of which are 4 or 5 feet in diameter. The depth of the excavation in front of the plaintiff's premises was about 35 feet, the width at the top 18 feet, and the sewer was 10 feet in diameter, when measured inside. The entire length of the sewer, including branches, was more than 3 miles, but for the most of that distance the diameter ranged from 5 feet to 12 inches, although for a part of the way it was from 12 to 15 feet. The work was let to the firm of James J. Moran & Co., who agreed to construct the sewer according to the specifications, and furnish all the materials and labor required, for a given sum per running foot, varying with the size. The method of construction provided by the specifications was through an open trench, to ‘be opened one foot wider on each side than the exterior diameter of the sewer,’ which was to be 12 feet. The sides of the excavation were to be ‘supported with suitable plank and shoring whenever necessary.’ The contractors were required at their own expense to ‘shore up, protect, restore, and make good, as may be necessary, all buildings, walls, fences, or other properties which may be disturbed or injured during the progress of the work’; ‘to do everything necessary to protect, support, and sustain the buildings on both sides of the street’; and were to ‘be held responsible for all damages which may happen to neighboring properties.’ A sufficient quantity of timber and plank was to be kept constantly upon the ground and used ‘as required for bracing and sheathing the sides of the excavation.’ Before breaking ground written notice of at least 24 hours was to be given to all persons whose interests might be affected by operations under the contract. The contractors were to promptly remove the surplus earth, relay cross walks, replace broken stones, regrade and repave the streets to the extent required by the work, and keep the materials excavated so trimmed as to be of as little inconvenience as possible to the public and the adjoining tenants. All damages resulting to buildings, etc., through the negligence of the contractors were to be paid by them, and they were required to give a bond to indemnify the city against all suits brought on account of injuries sustained through the construction of the work, ‘or by or on account of any act or omission of’ the contractors or their agents. In addition to this, the city was authorized to retain enough money otherwise going to the contractors to make good all losses to third persons. The city engineer was to ‘have the right to regulate the excavation,’ and not ‘more than 400 feet of trench’ was to be opened at one time without his permission, while the commissioner of city works was authorized to ‘change at his discretion the amount of all the various kinds of work and materials and structures.’ The contractors were required to observe all the ordinances of the common council in relation to obstructing the streets, and ‘in all cases of rock-blasting the blast’ was ‘to be carefully covered with heavy timber, according to the ordinances of the common council’ relating to the subject, ‘which ordinances shall be strictly observed.’ If any person employed by the contractor should ‘appear to the engineer to be incompetent or disorderly,’ he was to be discharged, and not employed again without permission. The engineer, with the consent of the commissioner, had power ‘to vary, extent, or diminish the quantity of work during its progress without vitiating the contract.’ It was also provided that ‘all explanations and directions necessary to the carrying out and completing satisfactorily the different descriptions of work contemplated and provided for under this contract will be given by said engineer.’ The city had the right to inspect the work and materials to see that they corresponded with the specifications. Any materials or implements brought upon the ground which the engineer ‘should deem to be of improper description or improper to be used in the work’ were to be removed forthwith. The contractors were to have charge of and be responsible for the entire line of work until its completion and acceptance, and were not to be paid for any part thereof until the whole sewer was finished. The specifications contained many provisions relating to details of the work that are usually found in municipal contracts for the building of sewers. The plaintiff's lot, as described in her deed, begins at a fixed point ‘on the southerly side of Greene avenue,’ and the third course runs ‘to the southerly side of Greene avenue, and thence’ by the fourth course ‘westerly along Greene avenue to the place of beginning.’ The house on said lot consisted of three stories and a basement, and cost $9,300. Further facts are stated in the opinion.

James Troy and George W. Wingate, for appellants.

John Whalen, Corp. Counsel (William J. Carr and R. Percy Chittenden, of counsel), for respondent.

VANN, J. (after stating the facts).

When a municipal corporation has general authority by statute to make a public improvement in a public street which does not involve direct encroachment upon private property, it is not liable for consequential damages unless they are caused by negligence, misconduct, or want of skill on the part of its servants or agents. Atwater v. Trustees, 124 N. Y. 602, 27 N. E. 385;Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195;Northern Transp. Co. v. City of Chicago, 99 U. S. 635, 25 L. Ed. 336; 2 Dill. Mun. Corp. § 1029; Shear. & R. Neg. § 272. In such cases the corporation is the agent of the state, and acts done in the proper exercise of governmental powers do not make such agent liable at common law, even if they indirectly affect, but do not directly invade, private property. If the work is unlawful, the injury willful, or the damages are owing to the failure of the proper authorities to exercise due care or skill, there is no exemption from liability, even when the undertaking is wholly for the benefit of the public. The relief sewer which is the subject of this controversy was lawful, because it was built wholly in a public street, without encroaching upon private property, and was duly authorized by statute. Such damages as were inflicted upon abutting property were an indirect result of the work, and were not caused by willful misconduct. The controlling question is whether they were owing to the omission of some municipal duty, or, in other words, whether the city, through its representatives, was guilty of negligence, which includes want of skill whenever the exercise of skill is required by law. This question, for convenience, may be resolved into the following subordinate questions: (1) Whether the defendant was negligent in selecting an improper route or adopting an improper plan for the construction of the sewer; (2) whether James J. Moran & Co. were ‘independent contractors,’ as that phrase is known in law; (3) whether said contractors, if not independent, were negligent in executing the work.

The city was not obliged, at its peril, to select the best possible route or to adopt the best possible plan, provided the route selected and the plan, provided the route ably safe. While the statute which conferred the power did not provide that this particular sewer should be built in any particular street, it was without limitation, and hence the city had control of the method of making the improvement. The route and plan adopted promoted the interest of the public, but two experts called by the plaintiff testified, in view of what had happened, and not in anticipation of what might happen, that construction by means of a tunnel would...