The learned justice who tried this case held that the defendant had a right to allow surjtlus waters, if any, from the canal, to pass, into the culvert and through the plaintiff’s premises, substantially as they did when the plaintiff’s building was erected ; but had no. right to use or allow the sewer to be used for receiving or conducting over the plaintiff’s premises foul or noxious matter. And. he enjoined the defendant from discharging on said premises, through said sewer such foul, noxious, or offensive matter.
There is no doubt as to the existence of the nuisance complained of and as to the pecuniary and special injury caused to the plaintiff’s property. The defendant has constructed a sewer in the street formed on the line of the abandoned canal (apparently called State-street). This sewer receives the drainage of' privies and other foul matter, and discharges it through what is called the State culvert, and thence upon the plaintiff’s land, rendering his building unfit for occupancy.
The defendant, on this appeal, insists that an injunction is not the proper remedy. The case of Campbell v. Seaman (63 N. Y., 568) is directly in point to show that an injunction should issue to prevent a nuisance like the present. And where the healthfulness-*163of the plaintiffs property has been impaired, it is eminently just that the court should prevent the continuance of the wrong.
Again, the defendant insists that the corporation is not liable for the acts of the common council, because, in determining what sewers should be built they act quasi judicially, not as agents of the city, but as public officers. (Mills v. Brooklyn, 32 N. Y., 489, and similar cases.) But the doctrine of these cases is, that the city is not liable to a private action for not providing sufficient sewerage and the like; that is, for such injuries as may be called indirect. In the present case, the city has emptied one of its sewers on the plaintiffs land. That is a direct violation of his right; a continual trespass on his property. And for that the city is liable, just as any private person would be. (Bradt v. Albany, 12 N. Y. Sup’m Ct., 591; Byrnes v. Cohoes, Id., 602. Affirmed, 67 N. Y., 204, 207.) The last case is closely analogous to the present.
The authority given by the legislature to the defendants to lay a sewer in the street (now called State street), conferred no right to discharge the contents of the sewer upon private property. If the city could lawfully discharge those contents on the plaintiffs land, then they might discharge them on the land of any other person who lived on the street or elsewhere. That is, they could make any person’s land the receptacle for sewage. No such power was given.
The defendant urges that it cannot build a sewer through the plaintiff’s premises, and, therefore, cannot reach the river with its sewers. Whether it is possible or hot to find a proper outlet for the sewers, we cannot determine. It' would seem (as a matter of fact) that the plaintiff was willing to have a suitable and sufficient outlet constructed on his premises. But, however that may be, the difficulty under which the defendant claims to lie cannot give a right to use the plaintiff’s land for sewage deposits.
It is also suggested that the operation of the injunction should have been postponed so as to give the defendant time to construct a proper outlet. No such request seems to have been made at the trial. And it appeared that the attention of the defendant had been called to the matter in August, 1878, and that this action was commenced in February, 1879. A sufficient time had been given *164for the defendant to act. It was the defendant’s duty to remedy the wrong at once.
The judgment should be affirmed, with costs.
Present — Learned, P. J., Bookes and Follett, JJ,Judgment affirmed, with costs.