I dissent from the conclusion reached by the majority of the court in this case that the plaintiff failed to present evidence from which the inference, of negligence might be drawn in respect to the construction and maintenance of the sewer which caused the over*57flow on the 24th of August, 1901. It is proper, therefore, to briefly summarize the evidence given at the trial which, in my opinion, required a submission to the jury of the issues of fact instead of a direction of a verdict in defendant’s favor by the court.
The premises occupied by the plaintiff are on One Hundred and Sixty-ninth street at Washington avenue and in what is known as-the Mill brook watershed. To drain this territory the Brook avenue sewer running from One Hundred and Sixty-fifth street to-the Bronx Kills was constructed in 1879. This sewer was subsequently extended to Webster avenue and thereafter continued up Webster avenue to One Hundred and Eighty-fourth street and from thence further continued to Mosholu parkway, and thence in 1899 to Two Hundred and Fifth street, with branches to the west. A temporary sewer was then built to the east connecting with the Williamsbridge system which is largely beyond the Mill brook watershed. Meanwhile the One Hundred and Sixty-ninth street sewer, leading into Webster avenue past the plaintiff’s premises from Franklin avenue to the east, was constructed. Although these branches and additional sewers were for the most part within the district which the Brook avenue sewer had been constructed to drain, the sewers were all designed, besides the surface water, to carry off waste water from the houses. As testified by the defendant’s engineer: “ There have been a great many houses built there; quite a number, and every house that is built up has a, number of water-closets and sinks and cesspools and drains which connect with the sewers, and all of these drain into the Webster Avenue sewer, and all the time from 1872 down, there have been constant additions to the burden that the Webster Avenue sewer has to carry off.” In this connection it was testified that there were other overflows prior to August 24,1901, and many complaints were made to the officials, and the defendant’s engineer admitted that he had received complaints as far back as the latter part of 1896. One witness testified that she had herself made six or eight complaints, one having been five years ago, and that the sewer basins became stopped upon occasions of ordinary storms— even slight storms she had seen that — and carried away no water. Another witness testified that there had been overflows in January, 1901, on July 5, 1901, and on August 24, 1901; and it was-*58further testified that in November, 1900, and March and April, 1901, there were overflows. Finally, testimony showing notice to the city was excluded on the ground that it was cumulative, the -court stating that defendant’s counsel admitted as matter of law that the city had sufficient notice.
More particularly with regard to the cause and the character of the overflow in question, it was testified that in a few moments after the rain began the water overflowed into the basement, the street was covered with water, the closets, sinks and drains backed up .and ran .over, the water being muddy and full of sticks and ■debris. And a manhole in the street at this point blew open and water spouted three or four feet in the air. One witness, who had •examined- the basin at the time, said it was full of mud and slush up to within a foot of the top and that prior thereto and back as far as April, 1901, he had seen this basin clogged up with mud up to a foot and a half of the top and that he had taken off the top to get balls for the boys who played there in the street and stood on the top of the mud which was hard and dry, and this was a constant •occurrence all through the summer, and the basin at the time of the •storm did not act at all. Upon this subject an engineer testified for the plaintiff that anything above two feet in the basin would retard the flow, and if it extended to within a foot of the top it would stop the flow entirely. Another witness testified that ever since the basins were built they have been a source of annoyance, and the •buildings have twice filled up with water prior to July 5, 1901, and from ten years ago she had seen the basins refuse to carry water three or four times a season. The director of- the meteorological •observatory of Central Park testified that the rainfall on August twenty-fourth was altogether two and forty-seven one-hundredths inches, of which one and eight one-hundredths fell between one and two o’clock, which was not as hard as the storm July 5, 1901; and that there are storms on record heavier and longer, notably September 22,1882; and an examination of the records of the observatory ■shows that during the last thirty-one years there have been forty-two •storms where the precipitation has exceeded one inch per hour, for which it was testified the Brook avenue sewer was constructed to provide. It further appears that since August 24, 1901, more adequate provision has been made for the drainage of this locality..
*59W e have not overlooked the evidence given in behalf of the city and which is set forth in detail in the opinion of Mr. Justice McLaughlin, that there had been constant inspections, and that a ■short time prior to the storm which did the damage the basins had been cleaned. This, however, was not conclusive, because on the question of the credibility to be attached to the witnesses whose testimony was thus opposed we have the actual occurrence at the time of the storm showing that the sewer was insufficient, that it did not carry off the water, and that this was so not alone because the storm was one of unusual severity, but, if the testimony of the plaintiff is to be believed, because the sewer at that time was clogged and had placed upon it a burden in the shape of all these lateral sewers greater than its capacity. We do not claim, on the other hand, that the testimony showing that the sewer was clogged and was insufficient is conclusive; but we do think that there were presented questions of fact, first, as to whether it was the part of prudent management to add to the original area which the sewer as constructed was intended to drain; and also as to whether, if reasonable care had been exercised in inspecting and keeping the basins cleaned, they would have been in the condition testified by the witnesses on the day of the storm.
In other words, upon the entire evidence, I think there were questions of fact for the jury as to whether it was negligence of the defendant to add the new sewers to the old one and to disregard the complaints and fail to remedy the defects, and whether the city had negligently permitted the basins to be and remain clogged and useless. Even though it be conceded that the original construction of the sewer was sufficient, there was evidence to justify the inference that the burdens further imposed upon it by extending the area which it was to drain and by making other lateral connections which increased the quantity of water and sewage to be carried off rendered it entirely insufficient, as shown by the frequent occasions when it overflowed, resulting in the numerous complaints to the city authorities, which, as admitted on the trial, brought home notice to them of its insufficiency. I think the facts bring the case within the rule laid down in Seifert v. City of Brooklyn (101 N. Y. 136), where, as here, there was evidence sufficient to justify the inference that the city had failed to provide proper and efficient drain*60age, and the judgment dismissing the complaint was accordingly reversed.
I think, therefore, that the judgment appealed from should be reversed, and a new trial' ordered, with costs • to the appellant to abide the event.