On March 23, 1905, a sewer broke and water came into the cellar of plaintiff doing considerable damage. Plaintiff sued German Grob & Son and the City of. New York. The complaint was dismissed at the end of plaintiff’s case. Plaintiff appeals. The dismissal as against the city was proper. The plaintiff claims that the mere fact of the overflow makes the city liable. The city, however, on the cross-examination of plaintiff’s witnesses, showed that the sewer was properly constructed and that the overflow was due to the wrongful act of the other defendant in *654allowing marble dust to run into the sewer in violation of a city ordinance. Promptly upon notice, the city took steps to remedy the evil. The plaintiff made out a prima facie case against the other defendant.
The judgment is reversed as to the defendant German Grob & Son, and a new trial ordered, with costs to appellant to abide the event, and it is affirmed as to the defendant City of New York, with costs.
Present: Gtldebsleeve, Leveetbitt and McCall, JJ.
Judgment reversed as to defendant Grob & Son and new trial ordered, with costs to appellant to abide event, and affirmed as to defendant City of New York, with costs.