By the charge of the learned justice the plaintiff might recover on either of two grounds: First, for negligence in terminating the Lark street drain where it was terminated; second, negligence as to keeping the (so called) Yan Woert street drain in repair.
We see no reason to question the first of these grounds. (Byrnes v. Cohoes, 12 S. C. N. Y., 602.)
The second is more doubtful. This Yan Woert street sewer, or *615drain, was not bnilt witbin tbe line of tbe street, except where it crossed tbe street from tbe north to tbe south side. It was bnilt on tbe land of private persons. Parts of it were bnilt by tbe owners of tbe property. Subsequently tbe city, with tbe consent of tbe owners, extended this drain on private property, through tbe plaintiff’s lot and through lots higher up, to what is called Shepards’ lot.
' This drain appears to have been used by tbe owners of tbe lots through which it ran. They toot off tbe covers of tbe box drain and erected privies directly over it. .
In regard to this drain, the court charged that if it was built by the city with the consent of the persons over whose land it passed, and the city had occupied it and controlled it as a city sewer, then the city was bound to exercise the same care over it as over the other sewers of the city. And if they were bound to keep it in repair, and were negligent, then the question would be the question of damages.
Now it may be trae that if the city, with the consent of the owners, constructed this drain, a box drain, and constructed it negligently, and thereby caused injury to the plaintiff, they might be liable. But can the fact that the city constructed and even repaired this drain with the consent of the owners make the city hable to keep it in repair ? So that for mere negligence in regard to repairs the city could be hable. What right would the city have to go on the premises of private persons to repair this drain ? Unless the city had the right to enter on the premises where the drain lay (that is, the premises of a large number of private owners, as appears from the map), how can they be hable for a neglect to repair. It is not to be held that the city was bound to do an act which they could do only by the consent of many persons.
In the ease of Nims v. Troy (59 N. Y., 500), an affirmative act had been done under the authority of the city by one Teeson, which directly obstructed the drain. It does not appear that this act was done on private property, or that it would have been necessary to go upon private property to remove the obstruction thus caused.
The case In re Ingraham (64 N. Y., 310) does not seem to apply here. The question there was as to the validity of an assessment. The sewer was laid within the line of the street. Even if the city had not acquired title to the street, yet, if the sewer had been laid *616by consent of tbe parties, it was held that Reassessment was not invalid.
But in this present ease, all that appears is that the city had built this box drain and had repaired it. These facts do not, of themselves, impose a duty on the city to keep it in repair where, being on private property, it is private property itself.
As the case was submitted to the jury upon both of these grounds of liability above stated, there must be a new trial, costs to abide the event.
Present — Learned, P. L, Bookes and Boardman, LJ.New trial granted, costs to abide event.