Legal Opinion

Smith v. Mayor of New York

New York Court of Appeals

Decided May 30, 1876PublishedCited by 34 opinions

Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of defendant, entered upon a verdict. (Reported below, 4 Him, 637.) This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the stoppage and overflow of a sewer in one of defendant’s streets, flooding plaintiffs premises.

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Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of defendant, entered upon a verdict. (Reported below, 4 Him, 637.) This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the stoppage and overflow of a sewer in one of defendant’s streets, flooding plaintiffs premises. The referee found, in substance, that the overflowing of the sewer and flooding of plaintiffs premises was caused by the stoppage of the sewer with sand, dirt and refuse matters washed in from the streets;…

1Opinion of the CourtAllen, J.

The defendants can only be made responsible to the plaintiff for the damage sustained by him by reason of the overflow of the sewer into his cellar and upon his premises, upon proof of some fault or neglect on their part, either in the construction of the sewer or in keeping it in proper repair. It is claimed that there is some evidence that the sewer was not properly graded, but the evidence is very slight, and the referee has not found the fact, nor was he requested •to find that the sewer was not of proper dimensions, well and properly constructed and upon the right grade. We are not at…

2Cases cited3 opinions

  1. McCarthy v. . the City of SyracuseNew York Court of Appeals · 1871
  2. Barton v. . the City of SyracuseNew York Court of Appeals · 1867
  3. Barton v. City of SyracuseNew York Supreme Court · 1861

3Cited by34 opinions

  1. Seifert v. . City of BrooklynNew York Court of Appeals · 1886
  2. Lloyd v. . the Mayor, C. of New YorkNew York Court of Appeals · 1851
  3. Burford v. City of Grand RapidsMichigan Supreme Court · 1884
  4. Biernacki v. Village of RavenaAppellate Division of the Supreme Court of the State of New York · 1997
  5. Meruk v. . City of New YorkNew York Court of Appeals · 1918

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