Beyer v. City of New York

Appellate Division of the Supreme Court of New York

Beyer v. City of New York

141 A.D. 679, 126 N.Y.S. 455, 1910 N.Y. App. Div. LEXIS 3935

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1910

StatusPublished

Cited by5 cases

This text of 141 A.D. 679 (Beyer v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beyer v. City of New York, 141 A.D. 679, 126 N.Y.S. 455, 1910 N.Y. App. Div. LEXIS 3935 (N.Y. Ct. App. 1910).

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Opinion

. JenksJJ.

The Obligation upon the defendant was due care do prevent the overflow of the' sewer through the house connection of plaintiff’s' premises. The.evidence, does-.not show that there was fault in the construction-of the sewer, or negligence, either in the. .omission to remove the obstruction which caused the overflow, after notice thereof, actual or constructive, Or in the inspection of the sewer system. The- evidence" indicates that the “'backing -up” óf the, sewage was caused by a stoppage- of sticks used by children when. in the street at play in the game of tip cat. It does not appear- how long this stoppage had existed, and consequently. that any reason^ able inspection, such as. could be exacted by the most rigid rule imposed upon a municipality in' charge of so great • a system, could have revealed the obstruction.- The overflow was an isolated, instance.. •

I think that the- judgment should be reversed, and- a new trial should'be ordered, costs to-'-abide the. event,-on the authority of Smith v. Mayor (66 N. Y. 295).

• Burr", Thomas, Bioh and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and" new -trial ordered, costs to abide the event.

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. JenksJJ.

The Obligation upon the defendant was due care do prevent the overflow of the' sewer through the house connection of plaintiff’s' premises. The.evidence, does-.not show that there was fault in the construction-of the sewer, or negligence, either in the. .omission to remove the obstruction which caused the overflow, after notice thereof, actual or constructive, Or in the inspection of the sewer system. The- evidence" indicates that the “'backing -up” óf the, sewage was caused by a stoppage- of sticks used by children when. in the street at play in the game of tip cat. It does not appear- how long this stoppage had existed, and consequently. that any reason^ able inspection, such as. could be exacted by the most rigid rule imposed upon a municipality in' charge of so great • a system, could have revealed the obstruction.- The overflow was an isolated, instance.. •

I think that the- judgment should be reversed, and- a new trial should'be ordered, costs to-'-abide the. event,-on the authority of Smith v. Mayor (66 N. Y. 295).

• Burr", Thomas, Bioh and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and" new -trial ordered, costs to abide the event.

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141 A.D. 679, 126 N.Y.S. 455, 1910 N.Y. App. Div. LEXIS 3935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beyer-v-city-of-new-york-nyappdiv-1910.

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