The plaintiff complains that the defendant so negligently repaired a street as to divert surface water, which naturally flowed in the gutters, into his house. He has recovered a judgment for injuries to chattels stored in his cellar. The plaintiff read in evidence a coil-tract for the work which shows that it was done by an independent contractor. The corporation counsel requested the court to charge' that “ the contractor (Light) contracted between him and the city of Mount Vernon for the work at which this accident occurred, Was an independent contractor.” And the learned, court, under exception, replied: “ I decline to charge that in the sense of being to the ; extent that it relieved the city of liability as already charged.”
But reference to the charge fails to show that the learned court had instructed the jury as to- the liability of the city for its negligence, in view of its employment of the independent contractor. The case was submitted without reference to the element of an independent contractor, save as to the question of notice. I think that under the request the defendant was entitled to have the court charge the rule laid down in Uppington v. City of New York (165 N. Y. 222, 233) for the reason that the municipal liability is thereby limited.
The judgment and order should be reversed, and a new trial ordered, costs to abide the event.
All concurred.
Judgment, and order of the Westchester Oounty Court reversed and new trial ordered, costs to abide the event.