Under the authority of chapter 512 of the Laws of 1860 the Dry Dock, East Broadway and Battery Railroad Company was authorized to establish a street railroad in Grand street and other streets in the city of New York and the company, under the authority therein granted, established and maintained such a railroad using horse power. This statute under which the railroad was constructed provided that “the use of said streets and avenues for the purposes of said railroad, as herein authorized, shall be considered a public use consistent with the uses for which the mayor, aldermen and commonalty of said city hold said streets and avenues” (§ 3). Section 4 provided: “It is hereby made the duty of the said mayor, common council and other officers to do such acts, within their respective departments, as may be needful to promote the construction and protect the operation of said railroad, as provided in this law. Any act or thing done in violation hereof shall be inoperative and void.” In 1897 this railroad company applied to the Board of Railroad Commissioners for permission to change the motive power from horse power to an underground current of electricity. This application resulted in an order of the Board of Railroad Commissioners authorizing such change of motive power in Grand street, subject to the lawful requirements of the local authorities. Under the act and the order of the Board of Railroad Commissioners the railroad company was authorized to make the necessary excavations to construct a subway required in accordance with the permission of the Board of Railroad Commissioners. The municipality had no discretion in the matter. The consent of the city was not required before the railroad company could make the necessary excavations, and, if the city had refused to issue a permit to disturb the pavement, the issue of such permit could have been compelled by mandamus. The railroad company applied for a permit, and the public authorities, as they were bound to do, granted the permit on certain conditions to protect as far as possible the rights of the public and the abutting owners. But, as the railroad company was authorized by the Legislature and the Board of Railroad Commissioners to make the excavations necessary to complete the structure, the act of the railroad *190company in disturbing the streets and making the excavations was not an act under any permit from the local authorities and it seems to me clear that, for any negligence in the method of construction, the railroad company and not the city of New York was responsible.
The railroad company proceeded under this authority to excavate in Grand street in front of the plaintiff’s premises, and in making the excavation it disturbed one of the sewers constructed by the city so that a portion of it was uncovered. The plaintiff’s evidence is that that condition had existed for two weeks prior to July 10, 1905. There is some evidence that there were piles of dirt from the excavations in the street, but I can find no evidence that the gutters were seriously obstructed for any time before the flooding of the plaintiff’s cellar, or that any obstruction in the gutters caused such flooding. On July 10, 1905, there was a remarkable fall of rain, commencing at two forty-eight and ending at four twenty-nine p. m., during which time two and fifty-six one-hundredths inches of water fell. The officer in charge of the local office of the United States Weather Bureau at New York testified that with the one possible exception for which the record is" not complete, the rainfall on July 10, 1905, was the greatest that ever occurred since the records have been kept in 1871. The exception was on October 4, 1877, when three and ninety-six one-hundredths inches of water fell within four hours. Here two and fifty-six one-hundredths inches of water fell within something less than two hours. The result of this rainfall was that the water filled the excavated trench, overflowed on to the street, over the sidewalk and into the plaintiff’s cellar, and occasioned the damages for which this action is brought. What seems to me to be clearly established by the plaintiff’s evidence is that the cause of the water entering the plaintiff’s premises was not any obstruction of gutters or culverts which the municipal corporation was obliged to keep in proper condition, but the excessive quantity of rain, coupled with the fact that the street in front of the plaintiff’s premises had been disturbed by this excavation, and in consequence of this whole situation the water, instead of flowing down the street, overflowed into the plaintiff’s premises. Bor this condition of the street the defendant was not responsible. *191It gave the railroad company no authority to make the excavation; it had no power to control the railroad company in its method of constructing its railroad. The city officials did their best to impose conditions upon the railroad company which would protect the property, but it had no power to stop the railroad company in its work or prescribe how the work should be done. The railroad company took possession of the street and made the necessary excavations to construct its work, and was engaged in such construction when this extraordinary fall of rain filled up its trenches and overflowed the plaintiff’s premises. I can see nothing that the defendant had the power to do or could have done which would have prevented this accident, and, if no act of the defendant or its officials could have prevented the accident, there is certainly no basis for charging the defendant with negligence because the accident happened.
The prevailing opinion seems to rely upon Schumacher v. City of New York (166 N. Y. 103), but the facts upon which it was held that there was a question for the jury in that action clearly distinguish it from this. By chapter 400 of the Laws of 1814 certain persons named were authorized to lay down and maintain certain tubes of iron underground, and for the purpose of such construction underground were given the right to open any street or avenue in any incorporated town or city by and with the consent of the corporate authorities of such town or city, excepting in the city of New York, where such consent should be obtained from the commissioner of public works. That statute made the consent of the city necessary to the use of the streets and avenues for this purpose, and in pursuance of that statute the commissioner of public works issued a permit. Acting under that permit the excavations were made, and the materials taken therefrom obstructed the culverts and gutters in front of the plaintiff’s building, leaving the trench unprotected in such a situation that the water from a heavy rain would flood the corner, enter the trench and percolate therefrom into the basements of the adjacent buildings. It was held that 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 rainfall in case the culvert and gutter should become obstructed, and *192if 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. Having provided gutters, culverts and sewers for the surface drainage, it was bound to the use of reasonable diligence to discover and remedy defects therein. Here the gutters, sewers and culverts were sufficient for ordinary purposes, and except as interfered with by the railroad company under the paramount authority of the State, would have been sufficient. It was not the obstruction of the gutters or culvert that caused the injury, but the excavations by the railroad company in the streets and its interference thereby with city sewers which, in so far as this record shows, was an interference over which the city had no control, and which the city could not have prevented. I think, therefore, the trial judge was correct in his determination that upon the evidence there was no question for the jury, and that the complaint was properly dismissed.
Laughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.