APPEAL by the plaintiff, John Brennan, from a judgment of the County Court of Albany county, entered in the office of the clerk
of said county on the 17th day of February, 1910, affirming a judgment of the City Court of Albany dismissing the complaint.
Dugan & Cooke [Daniel J. Dugan of counsel], for the appellant.
Arthur L. Andrews, for the respondent.
SMITH, P. J.:
Upon the south side of Van Woert street just east of Lark street in the city of Albany is a vacant lot. Upon the northeast corner of that vacant lot the land is low and around the lot there is high land. This lot forms a basin upon which surface waters therefrom are collected. While the evidence is not entirely clear, it would appear that formerly these surface waters, as well as flood waters, were taken care of by a drain from the northeast corner of the lot. Thereafter the sewer in Van Woert street was extended and an opening was left so that the surface and flood waters flowed into this sewer. This was afterwards built up and a grating put upon the top, constituting a catch basin, which would take care of all the surface and flood waters flowing into this natural basin in ordinary floods. At some time this lot began to be used as a dumping ground for refuse from different parts of the city. The city itself dumped refuse there, and thereafter an employee of the city was put in charge of this dumping ground and directed where the loads should be dumped and leveled off the piles caused by such dumping. About three years before the injury complained of the city employees leveled off part of the lot for the purpose of a baseball ground. After leveling off of part of the land for a baseball ground, the dumping upon the lot was mostly done upon the westerly side, away from this catch basin, but some dumping was done upon the easterly side of the lot and was so done under the direction of employees of the city that the surface and flood waters flowing upon the lot were unable to reach this catch basin, and by reason of the obstruction thus formed surface and flood waters, which resulted from a storm November 7, 1907, flowed upon the plaintiff's land and caused the injury for which this action is brought.
I am unable to see that the leveling off of the ground for the playing of baseball constitutes any factor in this problem. There
is no claim that this constituted any obstruction to the water in its course to this catch basin. On the contrary, the claim is that by the rolling down and packing of the ground there was less absorption, so that more water would naturally reach the catch basin than if the ground had been left unpacked and loose. There is no question, however, that if the water could have reached it the catch basin was sufficient in size to have taken care of it. The mischief lay in the obstruction of the course of the water after it flowed over the ball ground, by reason of the piles of refuse which had been dumped around the catch basin. The catch basin itself was at all times unclogged and was never overrun. The title of this lot was not in the city of Albany.
The learned county judge has held that all the acts of the city upon this lot, whether in the pre-paration of the field for the playing of baseball or in directing where the dumping should be made and leveling off the ground, were unauthorized acts, and for injury resulting therefrom the city cannot be held liable. (67 Misc. 42.)
Before discussing this question one or two preliminary questions deserve mention. Plaintiff contends that the defense of ultra vires is not available to the defendant because not pleaded. That is true where such defense is interposed to a contract obligation. Where, as here, however, the plaintiff is required to show some act of the defendant as a ground of defendant's liability in tort, he must show an authorized act, or an act incidental to an authorized act. Again, it is not a question of apparent authority. The liability of a principal for the act of his agent which is beyond actual authority can be based upon apparent authority only where such apparent authority has misled the other party.
If these acts were done upon land belonging to the city the liability of the city would be undoubted. If the land were lawfully leased by the city for the purpose of a dumping ground the liability of the city would still be clear. The acts of ownership exercised by the city over the land so notorious as to imply permission of the real owner showed at least possession, and with possession if for a lawful purpose the negligent use of the land so as to obstruct the flood ...