In July, 1905, the Diy Dock, East Broadway and Battery Railroad Company, a corporation organized under chapter 512 of the Laws of 1860, was engaged under permits by the city in changing its horse car line in Grand street, in the city of New York, to an underground trolley system. For that pupose it had, prior to the tenth of that month, dug a trench in Grand street several feet deep and several feet wide. The plaintiff occupies a portion of a building at 60 Grand street and the railroad company, in digging the trench opposite the building, exposed a large sewer and removed a portion of it, and dirt and stones in a large quantity were piled in the streets in such a way as to obstruct the gutters both to the east and west. On July 10, 1905, an unusually heavy rain storm occurred, during which the trench became filled with water from the surface of the street, or the sewer, and a large amount of it either percolated through or overflowed and ran into the basement of the building occupied by the plaintiff, damaging a quantity of tobacco stored therein. This action was brought to recover the damages sustained. At the conclusion of the trial the learned justice refused to submit any question to the jury and dismissed *186the complaint. From the judgment entered thereon plaintiff appeals.
I am of the opinion that the court erred in not submitting the case to the jury. The work which the railroad company was doing was under permits issued by the city, which required that before entering’ upon the work it should submit for the approval of the city plans and specifications of all proposed changes in water pipes and sewers, and that all such work should be under the supervision of inspectors to be appointed by and subject to the department of water supply or the borough president, though their salaries were to be paid by the company. The permits further provided that the entire operation, from the timé the pavement was taken up until it was replaced, should be under the supervision of inspectors appointed by the borough president from whom they were to receive their instructions, though their salaries were likewise to be paid by the railroad company. It also appeared that such inspectora did actually enter upon their duties and that for at least ten days prior to the storm the sewer had been interfered with — a portion of it removed — and the gutters in the street obstructed by the piling therein of dirt and stone; and that the water which went into the plaintiff’s basement was by reason of such obstruction. The city had provided the sewer and gutters for the drainage of surface water and it was thereby bound to use reasonable diligence to discover and remedy any defects therein. (Nims v. Mayor, etc., of City of Troy, 59 N. Y. 500; McCarthy v. City of Syracuse, 46 id. 194; Barton v. City of Syracuse, 36 id. 54; Ebbets v. City of New York, 111 App. Div. 364; Gravey v. City of New York, 117 id. 773.)
A case directly in point, as it seems to me, is Schumacher v. City of New York (166 N. Y. 103). There, a trench was dug in the street pursuant to a permit issued under a statute which authorized a corporation to place pneumatic tubes of iron beneath the surface of public streets, and for that purpose to open any street or avenue upon obtaining the consent of the commissioner of public works. (Laws of 1874, chap. 400.) The permit was granted upon certain conditions, quite similar to the ones here imposed. ' During a heavy rain, water collected in the trench, overflowed, and by reason of the fact that the gutters *187were obstructed went upon plaintiff’s property and did the damage, to recover for which the action was brought. At the trial the complaint was dismissed, but on appeal to this court it was reversed and a new trial ordered (40 App. Div. 320) and on appeal to the Court of Appeals the order of this court was affirmed, the court saying: “ The damages to the property of the plaintiffs were caused by the obstruction of the culvert and gutter, the construction of the trench and leaving it, unprotected, in such a situation with reference to the culvert and gutter that the water from a heavy rain would flood the comer, enter the trench, and percolate therefrom into the basements of the adjacent buildings. The city had notice of the necessities of the locality with reference to surface drainage, for it created them. It knew the danger to be apprehended from an unusual rain fall in case the culvert and gutter should become obstructed, and if, on the occasion in question, it knew or should have known that the culvert was closed entirely, as well as the other facts as they then existed, yet took no care to prevent injury to neighboring property, it was liable for damages naturally resulting from its neglect. * * * It is not excused because the storm was heavy and unexpected, as its care should include preparation, after notice of the obstruction, express or implied, for such storms as may reasonably be foreseen, and which, judging from experience, are liable to happen at any time in this climate. It made no attempt to open the gutter, uncover the culvert, protect the trench or provide for the water.”
In the present case the situation already described had existed for at least ten days upon a street much traveled. The trench, it must (be assumed, was dug and the sewer interfered with under the supervision of inspectors appointed by the officials of the city. This w.as the condition of the permits and the inspectors actually entered upon the performance of their duties. While it does not expressly appear that they saw the situation as it existed at the time the storm occurred, nevertheless the jury could have found, in the absence of evidence to the contrary, that they did actually see it and have knowledge of the danger, because it was their duty to see it and either to remedy or report it to the proper officials.
*188It is suggested that theinspectorsdid not represent the city, but this contention was answered adversely in the Schumacher case.
It is also urged on behalf of the respondent that the decision in the Schumacher case does not apply to the present case — the argument being that the permit in that case was granted as a favor, while here, as a matter of duty. The distinction urged is more fanciful than real. The statute giving to the railroad company the right to open the streets did not deprive or take from the city the right to exercise control over the manner in which the work was to be performed. This right was recognized by the railroad company when it applied for and obtained the permits, and they expressly provided that “No materials shall be piled or placed on any part of the roadway of the highways upon which the tracks are being constructed and the gutters shall always be kept unobstructed and open for proper drainage,” and “All the work from the time the pavement is taken up or the excavation is commenced to the .time the pavement is relaid and the railway completed shall be under the supervision of inspectors who will be appointed by the president of the borough.” The permits were accepted with these conditions, and the city did retain control of the manner in which the work was to be performed, and its own inspectors were acting for it in this respect. As was said by this court in the Schumacher case: “The work connected with this trench was being done under a permit of the city and under terms and conditions which gave it the control' of essential details of the manner in which the work was to be performed. It has been frequently held that where a municipal corporation enters into a contract with a third party to do work, but reserves to itself the manner in which that work shall be done, it becomes liable for negligence in the performance of that work.” From the testimony the jury could have found there was negligence in the manner in which the work here was performed. If I am correct about this, then it follows that the court erred ifi not submitting the case to the jury.
The judgment appealed from, therefore, is reversed and a new trial ordered, with costs to appellant to abide event.
Clarke and Dowling, JJ., concurred; Ingraham, P. J., and Latjghlix, J., dissented.