Dorlon v. City of Brooklyn

46 Barb. 604, 1866 N.Y. App. Div. LEXIS 46

• Court: New York Supreme Court
• Decided: February 12, 1866
• Status: Published

Opinion

By the Court, Sobugham, J.

The excavation was made and the earth placed on the street in the course of work performed by the plumber, Beed, under a private contract with the owner of a house on Fleet street, to connect the waste pipes of the house with the public sewer. It was not a city improvement, or work performed for or under the employment of the defendant. The license issued to Beed by the water commissioners did not make him a public officer of the city, nor did. the permission to connect the waste pipe, from the house, with the public server, establish" any such relation, between him and the defendant, as would render it responsible for injuries resulting from his negligence.

The sewers are the property of the defendant, and the water commissioners have charge of them, as its officers. Great injury would result to them from unskillful Avorkmanship in connecting them with pipes from private houses; and it is to gxiard 'against this, by inspection, and to make sure that no such work shall be done except by those skilled in its performance, that the rule of the water commissioners forbids its being done by persons not licensed by them to perform it, nor by those jxersons, except upon special permission.

By reference to these rules jt will be found that every plumber applying for license must furnish the board xxdth a satisfactory certificate, signed by at least two licensed plumbers of Brooklyn, that the applicant is known to them as a person regularly educated to the business, and in' every way qualified to receive a license. Upon this, and upon furnishing the requisite bond, the plumber receives his license, which is nothing more than a certificate that the commissioners, approAdng of his - competency, are willing that, under their regulations, he dp the work therein specified. This is not the work of the city, but of private individuals—the owners or occupants of houses and tenements. It is done for their benefit, and at their expense. The license can in no sense be considered an employment by the city, of the plumber receiving it. In this case the acts of the plumber, in digging the excavation and placing the earth in the street, were lawful, as he had obtained permission to make the connections ; but as these were obstructions in the street which necessarily rendered it unsafe for night travel, it was his duty, or that of his employer, to take such precautions as would avert the danger. This might have been done, by sufficient guards or lights, and the omission to adopt such sufficient precautions Avas the negligence Avhich was the immediate cause of the accident.

The water commissioners knew that the Avork was in progress, but there is no evidence that they, or any other officers of the city, knew, or had notice, that those whose work it Avas had been guilty of this negligence, and they were not bound to presume it. They exercised no control over the work, except such as is necessary for the. protection of the sewers, and the declaration in their certificate of permission, that the work is to be done under the direction of the engineer and inspector of sewers, has reference only to this. The inspection for which their rules provide, is only of the plumbing work and material.

[Kings General Term, February 12, 1866.

I see no reason why the judgment dismissing the complaint should be disturbed. The judgment and order denying a new trial should be affirmed with costs.

Scrugham, Lott, and L?. Barnard, Justices.]