author: Duer, J'.,

text:
    Vanderpool v. Kissam, impleaded with Keeler.
    An affidavit to obtain an order for the arrest of the defendant in an action for malicious prosecution, must set forth the facta relied on as presumptive evidence of the want of probable cause.
    It is not sufficient to atate in general terma the existence of malice .and the want of probable cauae.
    March 13, 1852.

      M W. Stoughton, for the plaintiff

      H. P. Hastings, for the defendant.
   Upon a motion to discharge the defendant, Kissam, from arrest, it was decided by

Duer, J'.,

at chambers, after a consultation with all the Justices, that in an action for a malicious prosecution, an affidavit for holding the defendant to bail is insufficient, when it states only in general terms the existence of malice and the want of probable cause. The facts which are relied on as prima facie evidence of the want of probable cause, must be set forth in the affidavit, so as to enable the 'judge, to whom the application for an order of arrest is made, to draw the proper conclusion of law. If such facts are omitted, the party swears only to his own belief, and his opinion, or that of his counsel, is substituted for a judicial decision.

Upon this ground, as well as upon affidavits on the part of the defendant, proving the existence of probable cause, the motion for his discharge was granted.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    Goulding v. Bain.
    In a suit for winding up a partnership by one claiming to be a partner, but whose right as partner is wholly denied by the defendant, and is not clearly established by the affidavits, the court will not grant a receiver or an injunction; there being no proof that the fund is in danger.
    (Before Oakley, Oh. J., and Campbell and Paine, J. J.)
    March 13, 1852.
    The facts appear in the opinion of the court.

      C. P. Kirkland, for the defendant.

      W. G. Noyes, for the plaintiff.
   By the Court,

Campbell, J.

This was an appeal from an order made at special term, upon complaint, answer and affidavits, granting an injunction and directing the appointment of a receiver. The action is brought to recover from the defendant certain alleged partnership property, or its proceeds. On the part of the defendant the partnership is denied absolutely, and the- defendant sets up what he says was the only agreement ever entered into between the parties, by which agreement, which is in writing, it appears that the plaintiff was employed by the defendant as a workman and superintendent of his manufacturing establishment at a stipulated salary. To this the plaintiff replies, that such instrument was prepared to show to his creditors, he being in embarrassed circumstances; and that the verbal agreement was, that he was to be an equal copartner in the business, and equal owner of the property in question. Upon the main question, whether or not there was a copartnership, the plaintiff and defendant are directly at issue, •the one positively affirming, and the other as positively denying such copartnership. Both are supported by numerous affidavits showing conversations and acts tending to establish or rej'ect the idea of such copartnership, and certainly leaving that question in our minds greatly in doubt.

But even if, under the circumstances alleged by the plaintiff in order to get rid of the written agreement, he can call upon the defendant to account as a copartner, that is, if he shall finally establish the fact that such agreement was made and acted on, (see Nellis v. Clark, 4 Hill, 424,) the serious question still remains, whether a court will interfere and order the appointment of a receiver, while the fact, whether there was or was not a copartnership, remains in dispute and undetermined, and especially where there there is no allegation as to the insolvency of the defendant, or of his inability to respond in case of an eventual recovery against him. Thus in Peacock v. Peacock, 16 Vesey, 49, the defendant denied any agreement to admit the plaintiff into partnership. An issue was directed, and the verdict established a partnership, and then a receiver of the estate was appointed. When the partnership is admitted, and one partner ejects another, or assumes the exclusive control of the property, and they cannot mutually agree as to their respective rights, a court of equity will interfere and appoint an indifferent person as receiver, to wind up the partnership, and pay the debts, and distribute the balance among the partners. But to authorize the appointment of a receiver, there must be a partnership admitted or established, otherwise the sole property of the defendant may be taken from him, and his business broken up, and in the end it may appear that there was no right on the part of the plaintiff, even to an account.

In this case the order must be reversed so far as it directs the appointment of a receiver, and must be modified so far as it allows an injunction, so that it will only enjoin the defendant against the use of the plaintiff’s name, or trade mark, or labels, upon any instruments manufactured after August, 1851. . No costs are allowed to either party.


author: Duer, J.

text:
    Sale v. Lawson.
    It is no objection to proceeding in the examination of a judgment debtor, after the return of an execution unsatisfied, that another execution has been issued and . levied on personal property, unless it is clear such levy will be effectual to satisfy the judgment.
    The constitution is not violated by the power given to a county judge to make an order for the examination of the judgment debtor after the return of an execution.
    March 20, 1852.
    An execution upon a judgment against the defendant, Lawson, was issued to the county of Kings, in which he resided, and returned unsatisfied, and an order for his examination was thereupon made by the county judge. Upon the same day, another execution was issued to the city and county of New York, under which the sheriff had levied upon a store of goods alleged to belong to the defendant, but which were claimed by a third person as his exclusive property. A motion was made on behalf of the defendant, to vacate the order for his examination, or set aside the execution, or that the plaintiff should elect which he would retain.

      P. J. Joachimssen, for the defendant.

      P. Callaghan, for the plaintiff.
   Duer, J.

I have consulted my brethren'upon the questions raised upon this motion, and we are all of opinion that the constitution is not violated by the power which is given to a county judge, by the code, of making an order for the examination of a judgment debtor. Such an order is a substitute for a creditor’s bill, and in its nature is an equitable proceeding. By the express words of the constitution, equitable powers may be vested in a county court. The county judge is the court.

As to the effect of the second execution. Before the code, the law was settled by repeated decisions of Chancellor Walworth, that a creditor’s bill is not superseded by the issuing of a new execution, unless it clearly appears that the property levied upon is the undisputed property of the debtor, and is sufficient to satisfy the debt. These rules are just as applicable to the examination of the debtor under the code as to the proceeding by bill, and we are all of opinion that they must still be followed. It is not only doubtful in this case whether the property levied upon is sufficient to satisfy the debt, but it is-claimed by the defendant’s brother under an assignment, and the validity of this claim is not only not denied, but asserted by the defendant. .

Motion denied with costs.


author: Sandford, J.,

text:
    Curtis, Executor, &c., v. Dutton.
    A plaintiff, who sues as executor, on judgment- being rendered against him, is liable for costs, either personally, or to be paid by the estate, in all cases where one suing in his own right would pay costs.
    In the taxation of the fees of a witness, at the trial term, who resides at a distance from the city, the party may tax for his attendance from the period when the cause was likely to be on the day calendar for the next day. His attendance will not be taxed during the whole period the cause was on the general cal- .. endar.
    March 26, 1852.
    Motion to correct the adjustment of costs, in a suit by the plaintiff as executor against the defendant personally, in which a verdict had passed for the defendant. Pull costs were taxed against the plaintiff, to be collected out of the estate of the testator. There was taxed in the costs, a charge for fifteen days attendance of a witness in January term, and fourteen days in February term.

      W. S. Sears, for the plaintiff

      W. M. Alien, for the defendant.
   Sandford, J.,

(all the Justices concurring.) — The plaintiff admits that the provision of the revised statutes, exonerating from costs persons who sue in a representative capacity, is abolished by the code, and contends that the only section of the code which gives costs against them is the 317th. He then argues that this section only gives them against the plaintiff, when the parties on both sides are in a representative character, as in a suit by an executor against a trustee, or the like.

We do not so understand the code. , The language is disjunctive.; it applies to a suit either by or against an eoxcutor, &c., without regard to the character of the adverse party. As to actions by or against persons in their own right, whether their suits were against executors, or they were sued by executors, the previous sections had in like manner defined their liabilities, without reference to the character of their adverse parties.

As to the witnesses’ fees. The cause stood No. 278, on the January trial term calendar, which was continued through February. This witness lived at Paterson, N. J., and could be procured on a day’s notice. The 31st January was the earliest day on which it was probable that the cause would be on the day calendar of the succeeding day.. It was on the day calendar, on Monday, February 2d, and continued there till the 6th, when it was set down for the 12th. It was then on the day calendar, and again, February 13th, when it was tried. The affidavit proved the attendance of the witness the whole twenty-nine days taxed.

Where a witness resides at a distance from the city, we allow the party to send for him as soon as it is probable the cause will be on the day calendar, by the time, or within a day or two of the time when the witness will arrive in the city. We do not tax for his attendance longer than this rule, followed in good faith, will require his attendance. Causes are frequently on the general term calendar a month, without the day calendar once reaching them. It would be absurd for witnesses to attend the court under such circumstances.

In this case, the defendant may tax for the witness’s attendance eight days, viz., January 31st, and February 2d, 3d, 4th, 5th, 6th, 12th, and 13th.

Order accordingly.


author: Duer, J.,

text:
    Meldora v. Meldora.
    Under the code as amended in 1851, in an action for an absolute divorce against-a wife, the court cannot proceed after the service of the summons, until a next friend has been appointed to defend the suit in her behalf.
    If she neglect to procure the appointment, it will be made by the court on the application of the plaintiff.
    March 27, 1852.
    This was an action for a divorce a vinculo, and an application was made for the usual reference, upon an affidavit that no answer or demurrer had been received, and that the defendant had not appeared.
   The Justices, consulted by

Duer, J.,

who had declined to. make the order, were all of opinion that as the 114th section of the code, as amended in 1851, requires that a married woman, when she cannot be joined with her husband, shall pros’ecute or defend, by her next friend, there can be no proceeding in such a; suit against her after the service of the summons, until her next friend has been appointed; and that when the appointment has not been made upon her own application, it may be made by the court, as in the case of an infant defendant upon the application of the plaintiff.


author: Sandrord, J.,

text:
    O’Reilly v. Davies.
    In an action of trespass' for entering and taking away rock and stone from plaintiff’s land, where the defendant sets up in his answer that he entered pursuant to a contract by which he was to blast and remove the rock to enable the plaintiff to erect houses on the land, and was to have the rock as a part of his compensation ; it was held, that “ a claim of title to real property" did not arise on the pleadings. '
    The defendant, in such a case, recovers costs, if the plaintiff recover less than fifty dollars damages.
    Where the answer does not traverse the plaintiff’s possession or title, he is not put to prove his title, although the land be wild and vacant.
    April 10, 1852.
    Complaint for trespass in entering a lot of plaintiff and blasting and carrying away rock and stone tberefrom. The answer stated that plaintiff contracted with defendant to blast off the rock and stone, to enable cellars to be made and buildings erected on the premises, and, among other things, defendant was to have the rock obtained in blasting. Defendant '’accordingly went on and continued blasting the rock by plaintiff’s direction and assent until forbidden by him. And that by the contract the rock and stone belonged to the defendant.
    The reply alleged that the defendant offered to do the mason work for three houses on these premises, for $3100, and plaintiff then said to him, that he would give -him the contract for such mason work, if he pleased plaintiff in some buildings he was erecting for plaintiff. No binding bargain was made, but defendant immediately commenced blasting the rock and stone. In a short time, defendant notified plaintiff he would not build the houses, and the latter not being pleased with his work on the other buildings, contracted with one Courter for the mason work of the three houses.
    The cause was tried by a referee, who reported that the defendant entered on the lot, which was vacant and unoccupied, in the expectation entertained by both parties, that he would have the contract for building the houses, and he commenced and continued the excavation under this expectation, till about the time notice was given to him to cease. That in so entering, it was at the risk of his not obtaining the contract, and not having obtained it, he was liable to the plaintiff for the value of the stone taken away, which the referee found’was $49.33. That the defendant was not liable for a malicious trespass, and therefore the referee reported in favor of the plaintiff for $49.33 damages.
    Each party claimed to recover costs.

      H. Hilton, for the plaintiff,
    cited 1 R. L. 344, § 4; Laws of 1824, ch. 238, §§ 1, 9 ; 2 R. S. 613, § 3; Code of Proc. §§ 304, 311, 81, 54; 8 Cowen, 115; 7 Wend. 495; 6 Ibid. 539; 18 Ibid. 79 ; 10 Ibid. 563 ; 1 John. R. 146 ; 2 Ibid. 185 ; 3 Cow. 382 ; 3 Denio, 173 ; 1 John. Cas. 162 ; 2 Black. Com. 195.

      L. S. Ashley, for the defendant,
    cited 2 Caines, 220; 10 John. 302 ; 11 Ibid. 404 ; 7 Wend. 495 ; 10 Ibid. 563 ; 18 Ibid. 579, and 649 ; 1 How. Pr. R. 180 ; 2 Code Rep. 152.
   Sandrord, J.,

(with the concurrence of all the Justices.)— We think, on consideration, that there was no “ claim of title to real property,” made by the pleadings in this case. The answer admits the plaintiff’s title unequivocally. It attempts to justify what has been done, by a contract made with the plaintiff to blast the rock on his land and remove it out of his way so that he might build houses there, and as part of his reward for his labor, the rock removed was to be the defendant’s. This sets up no title to the rock in the land, nor to any part of the freehold. It is a contract to do certain acts on the plaintiff’s land, as his laborer or servant, and for his benefit. If there were such a contract, the defendant had a right to enter on the land to do the Work. If there were none, his entry was a trespass. His claim is no more than a license. It does not savor of title. His claim to the stone is not that he had any right or title to them as stone or rock in the plaintiff’s soil, or as being a part of the soil. Before they were blasted out, he could not mark out or designate any portion of the rock or stone which was his or would ever become his under the contract. His claim of right to them was a mere corollary to the execution of his contract to do labor for the plaintiff, and arose from its execution. It was thus a claim to the rock after it was removed and blasted, not to rock attached to the freehold.

In Powell v. Rust, 1 Code Rep. N. S. 172, to which we were referred, the defendant’s claim was, that the title to the growing shrubs, roots, &c., was in him, and had never been out of him or in the plaintiff. It was as much a claim of title to a part of the freehold, as if it had been made of a'city lot reserved out of his sale and conveyance of a larger tract to Powell. If, in that case, Rust had conceded that Powell owned the shrubs, roots, &c., and had justified upon a contract by which he was to remove them from Powell’s land in order to turn it to some other use, and was to have the shrubs as a part of the price of his labor in removing them, the case would have been like the one before me, and I think the learned and respected court which passed upon it would have held the defendants entitled to costs. The statement of right in the answer is not as strong as that made by one entering upon and claiming land under an executory contract of sale, which it is held does not constitute a claim of title. (Dolittle v. Eddy, 7 Barb. S. C. R. 75.)

The fact that the plaintiff’s lots were vacant and unoccupied, gives him no right to costs. The rule on which he relies was applied to wild lands, under the old system of pleading, but it is now inapplicable, because if the defendant do not in his answer deny the plaintiff’s possession or title, he need give no proof on-the subject. Here neither was denied, so that no proof of title became necessary in consequence of the land being unoccupied. The cases cited show that where the possession of wild land is put in issue, the title is also in issue, because the plaintiff, to show possession, must prove his title.

The defendant is entitled to the costs of the suit.


author: By the Court.—Freedman, J.

text:
    HENRY C. ALGER, Administrator, Etc., Appellant v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Respondents.

      Action for damages to real estate caused by the construction of an elevated railroad in the adjoining street.

    The complaint was dismissed at the trial term, on the ground that the plaintiff had not proven facts sufficient to entitle him to the consideration of the jury on the question of damages.-

      Held, that at the time the plaintiff rested his case, he had shown sufficient facts to entitle him and his case to the consideration of the jury. Much depended upon the ijroper inferences to be drawn from the evidence, but inasmuch as different men of reasonable minds might have reached different conclusions from the facts disclosed by the evidence, the case was one for the jury to consider and determine upon the facts. The conclusion, therefore, cannot be avoided that the dismissal of the complaint constituted error.
    Before Freedman and Dugro, JJ.

      Decided October 10, 1891.
    Appeal by the plaintiff from a judgment in favor of defendants dismissing plaintiff’s complaint with costs, and also from an order denying plaintiff’s motion for a new trial.

      A. Edward Woodruff, attorney and of counsel, for appellant, argued:—
    I. Though a motion was made in the present case to set aside the dismissal, etc'., and denied, the exception duly taken to the “ dismissal ” was all that was required to raise the question, whether upon any construction of the facts proved the plaintiff was entitled to go to the jury. Stone v. Flower, 47 N. Y., 566; Trustees, etc., v. Kirk, 68 Ib., 459-464; First Nat. Bank v. Dana, 79 Ib., 108; Train v. Holland Ins. Co., 62 Ib., 598; Clemence v. City of Auburn, 66 Ib., 334; Scofield v. Hernandez, 47 Ib., 313.
    II. A motion for a nonsuit can never be granted where a cause of action, however trifling, is either proven or admitted in any way. Cowen & Hill’s Notes, 450-466; 2 Hill, 644; Van Rensselaer v. Jewett, 2 N. Y., 135; People v. Metropolitan Tel. Co., 64 How., 120; Waits’ Practice, vol. 3,160; Baylies’ Trial Prac., 219; Weber v. Kingsland, 8 Bosw., 415; Ihle v. 42d St. R. R., 47 N. Y. 317; Ryall v. Kennedy, 8 Jones & S., 347-359; Cornwell v. Mills, 12 Ib., 45. A nonsuit cannot be granted if the plaintiff is entitled to recover anything, although merely nominal damages. Weber v. Kingsland, supra; Van Rensselaer v. Jewett, supra; Forbes v. Chichester, 26 N. E. Rep., 914. See opinion, Earl, J. It was in evidence in the present case: (1.) That the defendants were in the occupation of the intestate’s property at the time of his death, and had been in such occupation since the construction of the road in 1877. (2.) That before the road was built the property rented for $1,200 per year, and after the road cáme into the street only a rental of $660 per year could be obtained. (3.) The effects of the construction, operation and maintenance of the road were shown to be more than usually detrimental to the property; that the light was so obstructed as to necessitate the burning of gas on two of the floors ; that access to the property was obstructed by a column in front of the house, and by reason of signals almost immediately in front of the house there was much more than the usual amount of noise, etc. It should not need any citation of authority to sustain the proposition that such evidence made out a prima facie case for plaintiff. Drucker v. Manhattan Ry. Co., 106 N. Y., 157; Taylor v. Metropolitan Railroad Co., 50 N. Y. Supr., 456; Conkling v. Manhattan Ry. Co., 12 N. Y. Supp., 846; Sherwood v. Metropolitan Railroad Co., 12 Ib., 852.
    In St. John v. The Mayor, 6 Duer, 315, it is said: “ The plaintiff showed the actual receipts of his hotel for a year or more previous to the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and, again, the actual receipts for some months after the obstruction was removed. This furnished the means of computation and of satisfactorily ascertaining the diminution of receipts.” See also, Francis v. Shoelkopf, 53 N. Y., 152; Jutte v. Hughes, 67 Ib., 267; Baltimore & Potomac R. R. v. Fifth Baptist Church, 108 U. S. 317. But if it were necessary to seriously argue the question on principle, we could not do better than adopt as our argument that presented by the defendants to the Court of Appeals in a recent case. In the case referred to, which was that of Moore, et al., Executors of Margaret W. Duyckinck v. The New York Elevated R. R., et al., on appeal from this court, the writer was counsel for the plaintiffs, and these defendants endeavored to convince the Court of Appeals that such evidence as appears in the present case was sufficient, and all that was required on the part of a plaintiff in such actions as these, to make out .a ■prima facie case. Since the present case was tried, the Court of Appeals have handed down an opinion which is authority for the proposition that in any case such as this, where an elevated railroad has occupied a city street without the consent of the abutting owner, the road is presumed to be an interference with the property owner’s rights, and the question is simply whether on the proof in the case the owner is entitled to recover substantial, or only nominal damages. Williams v. Elevated R. R., 26 North Eastern Rep., 1048.
    III. After the road was built and in operation, in 1879, a lease was made of the premises at a reduced rental, under which lease the tenant held the premises during the period covered by this suit. Under such circumstances the claim that the cause of action was not in the landlord cannot be sustained, and the learned judge so held at the trial. The question has been settled in this court, and is not now open to further argument. Mortimer v. Manhattan Ry., 8 N. Y. Supp., 536; Hamilton v. Manhattan Ry., 9 Ib., 313; Moore v. N. Y. Elevated; decided December, 1890; concurring opinion, Freedman, J. And in the Supreme Court, and in the Court of Common Pleas, the decisions of this court have been followed on the question. Knox v. Metropolitan El. Ry. Co., 12 N. Y. Supp., 848; Conkling v. Manhattan Ry. Co., supra; Macy v. Metropolitan El. Ry. Co., Ib., 804; Doyle v. Manhattan Ry. Co., Ib., 548.

      Davies & Rapallo, attorneys, and Edward C. James of counsel, for respondents, argued:
    I. That, by 2 R. S. 114, § 3, executors and administrators are authorized to “ maintain actions for trespass committed on the real estate of the deceased in his lifetime.” But Mr. Alger could not maintain an action for trespass upon this real estate by the defendants at the time he died, because trespass is a possessory action, and for more that six years previous to his death he was not in possession. Tobias v. Cohn, 36 N. Y., 363; Holmes v. Seeley, 19 Wend., 509; Campbell v. Arnold, 1 Johns., 511; Waterman on Trespass, §§ 948, 949. By reason of the term of years created by this lease Mr. Alger had become a reversioner and his estate in this land for the time being, an incorporeal hereditament. 4 Kent’s Com., m. p. 353-5. At the time this action was brought, in May, 1879, the only action he could have maintained, had he lived, was the statutory action under § 1665 of the Code, “ founded upon an injury done to the inheritance.” Thompson v. Man. Ry. Co., 15 Daly, 438; Tobias v. Cohen, supra; Van Deusen v. Young, 29 Ib., 9. His heir, or devisee, after his death and after the expiration of said term of years, could recover the damages to the inheritance from defendants’ acts between those dates. Mortimer v. Man. Ry. Co., 57 Super. Ct., 509. But no such recovery could be had, in either case, unless the injury to the inheritance was alleged in the complaint and proved upon the trial. Tobias v. Cohen, supra. The complaint does not state that the plaintiff’s intestate was seized in reversion, and does not allege an injury to his future estate, or reversionary interest, but states the entire damages for which it prays judgment, to be occasioned by the depreciation in the value of the premises. No action at law can be maintained by an owner in possession to recover such damages. Pond v. Met. El. Ry. Co., 112 N. Y., 186. Much less can it be maintained by the administrator of a reversioner, as has been attempted in this case.
    II. It is plain that Mr. Alger did not sustain any damages from anything done or omitted by the defendants within six years preceding his death. The most that can be said is that, at the time he granted the term of years, in December, 1879, he might have, secured a larger rent than the lease called for, if the defendants’ railroad had not then occupied the street. But the plaintiff did not produce proof of this fact. The jury was left to guess at it. It is equally plain that, had the railroad been removed in 1881, Mr. Alger could not have had any increase of his rent while this ten years’ term continued. Whatever injury was done to him was through his own act in granting a ten years’ lease in 1879, and thus cutting himself off from all improvement in rental value during said term. The only acts of the defendants which could possibly have contributed to such damage must necessarily have been done prior to the date of said lease. But there was no proof that defendants’ acts prior to that date had affected that rental value, and, even if they had, their liability for such acts was barred by the statute of limitations before this action was brought. Mrs. Hilbert, the lessee, now Mrs. Perry, testified that, when she went there originally, the railroad was not there ; that she first paid $100 a month for a couple of months, and then made improvements, and after that paid $75 per month, and then took the ten years’ lease at $55 per month ; that at some time before the railroad, she sublet the store and" first floor for $75 a month, and the two top floors for $18 per month and after the ten years’ lease took effect, she first sublet the whole house for $75 per month, and after that at $50 for the store and first floor and $12 per month for the two upper floors. This was all the proof touching the rental or rental value at any time. No previous leases were offered. No evidence was given of fee or rental value at any period before the railroad, or of the fee or rental value of any other property, on or off the line of the railroad, before or after the railroad was built. In Drucker’s case (106 N. Y., 164) the court, speaking of the evidence in these elevated railroad cases, says : “ Such evidence as can be given should be given, and facts naturally tending to elucidate the loss should not be withheld.” But here the evidence which could have been given was not given, and, although the property was deeded to plaintiff’s intestate December 31, 1868, its whole rental history was suppressed or withheld, except the vague and confused statements of the woman who kept the sailors’ hoarding house. The plaintiff, therefore, did not discharge his burden of proof, or make a case on the subject of damages to rental value, which he was entitled to submit to a jury. Any verdict for the plaintiff founded upon such evidence must have been set aside. The learned judge, therefore, properly dismissed the complaint for this failure of proof for the same reason that the general term of this court reversed the judgment of the special term, in the Cunningham case, decided in February, 1891. See Cunningham v. Man. Ry. Co., Ms. Op. Truax, J.
   By the Court.—Freedman, J.

The action was brought by the plaintiff as administrator of Daniel B. Alger, deceased, to recover damages caused by defendants’ elevated railroad to premises No. 37 Front Street in the city of New York owned by plaintiff’s intestate in his lifetime. The action was commenced May 14, 1889, and under the pleadings and the evidence given at the trial the plaintiff, upon proper proof of damage caused by the defendants, was entitled to recover damages from May 14, 1883, to the death of Daniel B. Alger, which occurred June 7, 1887. Under the decisions of former cases the outstanding lease constituted no bar. Consequently the only question requiring serious attention is whether the plaintiff gave sufficient evidence of damage during the period stated. The trial judge must have been of the opinion that the plaintiff had not done so, for he dismissed the complaint upon plaintiff’s own showing and without requiring the defendants to go into a defence. Upon a careful examination of the whole case I am of the opinion that the plaintiff showed sufficient to entitle himself to go to the jury. A good deal depended upon the drawing of the proper inferences. But inasmuch as from the facts disclosed different men of reasonable minds might have reached different conclusions, it was for the jury to determine the facts. In Jones v. Metropolitan El. Ry. Co., 14 N. Y. Supp., 632, the case was submitted to the jury under an unexceptionable charge, and the jury found a verdict for the plaintiff for only six cents damages. The general term, on plaintiff’s appeal, ordered a new trial on the sole ground that the damages thus awarded for a period tif four years were insufficient and that the hardness of the task to determine the damages was no excuse for the neglect of the jury to thoroughly perform its duty. That case in some of its essential features relating to the damages was very much like the case at bar. The conclusion cannot therefore be avoided that the dismissal of the complaint constituted error.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dugro, J., concurred.


author: By the Court.—Gildersleeve, J.

text:
    MARY MURPHY, Respondent v. THE SUBURBAN RAPID TRANSIT COMPANY, Appellant.

      Action for damages for an injury sustained by plaintiff for which she claimed the defendant was liable.

    In March, 1882, the defendant obtained permission from the city of New York, to construct a bridge across the Harlem River for its trains, etc., on condition that defendant should keep and maintain a footway thereon with necessary and convenient stairways and approaches thereto from the street at either end. After the construction of said bridge, stairways and approaches, defendant took charge of and kept the platform approaches to the stairways. Plaintiff, in December, 1888, crossed over the bridge from north to south, and had just reached the foot of the west stairway to the street, when her foot caught in a projecting board in the platform approach, that caused her to fall with the result of severe injury. This projecting board in the platform had been left in this dangerous condition for thirty days previous to the accident. The facts relating to the accident, and the serious character of the injury to plaintiff, were not disputed, and the question of contributory negligence was fairly presented to the jury, who found in favor of plaintiff.

      Held, that defendant undertook to construct and maintain the bridge with suitable and necessary approaches thereto, and was bound to keep the same in complete order. Both principle and authority imposed upon the defendant the obligation of keeping the same in repair. The approaches were as necessary as the bridge itself. This defective condition of the platform approach rendered a part of the street unsafe for the ordinary purposes of travel, and constituted a nuisance. The responsibility for the repair and maintenance of the platform approach in a safe condition rested upon the defendant. There was no evidence tending to show that any other person or organization than the defendant was responsible for the condition of the plank at the time the plaintiff stumbled upon the same and fell. The instructions of the learned trial judge to the jury in this respect were correct and are sustained. The obligation of the defendant to the public in the premises was not kept, and any special damage arising from the failure of defendant in this respect, furnishes ground for a private action without regard to the question of negligence on the part of the defendant. The defendant was liable to the plaintiff in damages for the injury sustained by her, unless her own negligence contributed thereto. The question of contributory negligence was correctly submitted to the jury, and the conclusion in favor of plaintiff was fully justified by the evidence.

      Before Freedman, Dugro and Gildersleeve, JJ.

      Decided October 10, 1891.
    Appeal from a judgment in favor of plaintiff and against defendant, entered upon the verdict of a jury, for five thousand dollars, for injuries sustained by plaintiff, and from an order denying a motion for a new trial.

      James R. Marvin, for appellant, argued :—
    I. The plank platform where plaintiff received her injury was the plank covering of a public dock owned by the city of New York, and was located at the northerly end of, and within the lines of Second avenue at the Harlem River. Second avenue at the time of the injury had been opened by a proper legal proceeding, and at that point was one of the public streets of the city of New York. This dock was under the exclusive control of the dock department. That department had exclusive charge and control of the repairing, building, rebuilding, maintaining, altering, strengthening, leasing and protecting said property ” (all wharf property), “ and every part thereof, and of all the cleaning, dredgingand deepening necessary about the same” (Consolidation Act, § 711). The department of public parks by § 671 of that act was given “ exclusive power to devise plans for and locate all bridges and tunnels ” in the Twenty-third and Twenty-fourth Wards. It was granted “ exclusive right to construct all bridges ” within that territory. By § 675 of that act it is made the “ duty of the department of public parks to devise and prepare plans for the improvement of the navigation of the Harlem river and Spuyten Duyvil creek, the plan and location of all bridges, tunnels and other means of transit across or under said river and creek ; and plans, locations and grades, so far as the said board may deem practicable, of all railroads and similar modes of communication and transportation to be operated by steam or other power that may hereafter be authorized by law, to be constructed within, through, or in connection with said area, and plans and location of new piers and bulkhead lines and the grades thereof on both sides of the Harlem river,” etc. Section 676 of that act gave that department “ full power and authority to build and construct, by contract or otherwise, as they shall deem most expedient, any and all bridges, etc., across Harlem river,” etc. That section also makes provision for the height of bridges and requires that “ the number and size of the bridge piers within the improved channel shall first be approved by the Engineer of the United States in charge.” Permission for the construction of defendant’s bridge was given by both of those departments. Plans for the construction of the bridge were prepared and were approved by those departments and by General Newton, the United States Engineer in charge of the Harlem river improvement. The resolution of the department of parks giving its consent to the construction of the bridge is found in plaintiff’s exhibit 3a, p. 129. That is an etc., of the first part, with defendant, party of the second part, for the construction of the bridge by defendant. The agreement witnesseth: “ That the said parties of the first part, in consideration of the covenants and conditions herein contained on the part of the party of the second part, and in order to promote a means of communication or transit across Harlem river for pedestrians, and also by means of a railroad to be operated by steam power in said city of New York, do hereby consent to the erection, and carrying on of the erection, by the Suburban Rapid Transit Company, and at its own expense, of a railroad and foot-bridge across the Harlem river, at the location-in said resolution prescribed.” In consideration whereof the Suburban Rapid Transit Company agreed to commence the bridge within four months ; that the bridge should be a railroad bridge for cars, etc., “ and with ways for foot passengers, one on each side.” * * * “ The roadways for foot passengers shall be not less than six feet in width in the clear, guarded with iron railing on each side, and connected with the street by proper steps and approaches of iron on each side, which shall be roofed over, and at all times open free to the public.” By the third clause of the agreement defendant agreed that it would “ maintain said bridge and its footways and the approaches and stairways and roof in complete order, and said footways and the approaches and stairways except when the draw is necessarily open, shall be open for the free use of all persons desiring to pass and repass over the same on foot. “ Fourth.—That the use of said footways by the public, shall be under such rules, regulations, requirements and ordinances as have been now prescribed or which may hereafter be prescribed by said department.” By the sixth clause the department was authorized to appoint one inspector of the bridge to be paid by the department.
    BE. It is claimed by the plaintiff that the dock platform on which plaintiff fell, was one of the “ approaches ” to the bridge which defendant agreed to construct and maintain, and that defendant was guilty of negligence in suffering this platform to get out of order. But a reference to the agreement will show that the approaches therein mentioned, were to be constructed of iron and roofed over. There is an elevated approach to the northerly end of the bridge extending from the bridge to the stairway at Lincoln avenue. This is constructed of iron. This and the stairways are the approaches meant by the agreement.
    III. It is clear from the agreement itself that the department of parks, as a condition for its consent to the construction of a railroad bridge for defendant’s use, required the defendant to construct the footways and stairways for the city’s sole use, free of charge, and over which it reserved absolute control, and it has always exercised that control. The department of parks lights the footways and stairways, and has adopted and put up on the footways rules and regulations for their use. In other words, the defendant made a contract with the city to build for its sole use and control a foot-bridge for foot-passengers to the manifest disadvantage of the defendant, in the diversion of passengers from its cars, and in the greatly increased cost of the bridge. The city must be deemed the beneficial owner of the foot-ways and stairways. The department of parks, by Section 676 of the Consolidation Act, was authorized to build bridges over the Harlem river by contract, and in point of fact that department under that authority made a contract with defendant to build a foot-bridge for the city just as effectually and just as much within the spirit of that act as if it had made an agreement with defendant to build an independent foot-bridge over that river for the city’s use, and the same rule of law as regards liability for damages sustained by third parties as between owner and contractor applies. The park department had accepted the stairways and footways, and had taken complete control over them sixteen months before plaintiff was injured.
    IV. The platform of the dock was no part of the bridge structure. It is true that in constructing a pier for the stairway to rest on defendant necessarily cut a hole through the planking and completely filled the space cut out with a concrete pier, and left the plank in good and safe condition, closely hugging the pier. The cutting of the planking may be considered a part of the construction of the bridge. If the hole cut in the planking had been left unguarded while the work of construction was going on, and plaintiff had fallen into it and been injured, defendant would not have been liable to her. But, however that may be, certainly, after the work of construction had been completed and the city had taken control of the stairways and footways, all liability on the part of defendant for injuries to third parties ceased, as the city was the owner of the dock and the plank by which plaintiff was injured and the soil underneath it. The city had required the stairway to be built for its sole use, and the stairway cordd not have been built without the construction of the pier, and that could not be built without cutting a hole through the planking. After the completion of the work and its acceptance by the city, the city only was liable for injuries happening to third parties, as the cutting of the hole in the planks was not injurious to health or dangerous to life. Cases cited in Thomas v. Winchester, 6 N. Y., 408; Losee v. Clute, 51 Ib., 494; Loop v. Litchfield, 42 Ib., 351.
    V. Plaintiff’s counsel in his brief at trial term says that “ the ground upon which this action is put is that the defendant maintained a nuisance.” The cases cited by him, among which are Congreve v. Smith, 18 N. Y., 83; Clifford v. Dam, 81 Ib., 52; Dygert v. Schenck, 23 Wend., 446, in support of that proposition, are all cases where the defendant made excavations or openings in the street without authority and solely for his private convenience and not for the public use. Those cases are clearly distinguishable from this (Kelly v. Dooley, 116 N. Y., 581). In the first place, the stairway and footway were constructed by the defendant for a public use by the people of the city, and not for the use of defendant at all. In the second place, the work done by the defendant was required to be done by one of the departments of the city, for the city’s benefit. Also in those cases the surface of the street was excavated or raised at the exact point where the plaintiffs therein were injured. In this case the ground under the plank that became loose had not been disturbed. The planking was left in good order when the work was completed. It got out of order not from any act of defendant, but from deterioration by action of the elements, or from the continual passing over it of thousands of people for a year or more.
    VI. Had there been no evidence in the case proving that defendant left the planking -in good condition it could not be inferred that the plank was left in bad condition from the fact that more than two years afterward the plank became loose at the end. It had been subjected to the travel of thousands of people for over a year. The plank was not under cover, and was therefore exposed to the action of the sun’s rays, rain and snow, thawing and freezing, all of which were sufficient to account for the plank becoming loose. There not only was no proof that the work had been improperly done, but there was no proof that the plank became loose through any act of defendant.
    VII. As the dock was the property of the city and the dock department was bound to maintain it, defendant would be a trespasser if it attempted to maintain the planking. The city cannot be relieved of its responsibility for the care of its .streets and docks by any act of an individual who may assume to repair them.
    VHI. Inasmuch as the work of constructing the pier and the consequent cutting of the planking was done under the authority of law, and in the absence of any contractual relations with the city, defendant is not liable to maintain the planking, and could only be liable to third parties because of negligence in doing the work while in progress, if at all. In Kelly v. Dooley, 116 N. Y., 575, plaintiff was injured by falling into an excavation in the street, made for mailing a water connection. The excavation was made under a permit from the public authorities. The court says : “ In this case the excavation was permitted by the public authorities, and the party making or maintaining the obstruction only becomes liable for his negligence in the use of the privilege.” In Eagan v. Forty-second St. R. R. Co., 4 N. Y. Sup., 530, where plaintiff was injured by stepping into a hole between the rails of the railroad track owned and controlled by defendant, but it was not shown that the construction or maintenance of the tracks was defective, nor that the defendant was within any statute making it the duty of street railroads to keep the space between the tracks in repair, it was held that the complaint was properly dismissed. The court says that it did not appear that it was defendant’s duty to keep the space between the rails in repair. “ The city and not the defendant had control of this space. The defendant could not, without the city’s permission, exercise any precaution it might deem necessary to prevent the existence of holes in the street, and in the absence of any agreement between it and the city in regard to the matter, or any special duty imposed by law, it should not be held bound to keep the space in question in repair ; no defect in the construction or maintenance of the track is shown. In Silberstein v. Houston, etc., R. R., 117 N. Y., 293, plaintiff slipped on the ice between, the rails and was run over by a car. The court says (p. 296): The idea (of plaintiff) seemingly was that a duty rested upon the defendant to keep the space between its tracks free from ice and snow. Of course, no such duty rested upon it, and no such liability for a failure to do so, as was claimed in this case, would follow.” City of Buffalo v. Holloway, 7 N. Y., 497.
    IX. A person is not liable “ for negligence in the performance of any work, unless his negligence was in violation of a contract express or implied, or of a duty which was imposed on him by law.” Mayor of Albany v. Cunliff, 2 N. Y., 173. In that case (fol. 169) the court says: “ The rule seems to be well settled, that to charge a person in an action on the case, for negligence in the performance of any public work whereby any person has sustained any special damage, ‘the law must have imposed a duty on him so as to make that neglect culpable’ [Esp. N. P., Tit., Trespass, on the Case, 365), and if the bridge in question was a public bridge, the reason why plaintiff could not sustain an action against William Van Zandt for having built it in a negligent and improper manner, is that he could not allege or prove that it was Mr. Van Zandt’s duty to build it.” Judge Cady in that case puts the case of a traveler who built a bridge over a stream as a means of passing his team over it, and shortly after another traveler comes along and attempts to cross the bridge and it falls under him, and his horses are drowned, and says (page 170): “ Has he a remedy against the man who built the bridge ? Why not ? Because the law had imposed on him no duty to build it, and so I apprehend the law to be in relation to the defendants. If the law had imposed upon them no obligation to construct the bridge they must be regarded as mere volunteers, and in no way responsible to the plaintiff for what they did, or for what they neglected to do.”
    X. The plaintiff’s cause of action is against the city. She has no cause of action against the defendant. The city was charged with the maintenance of the dock planking. Even owners of adjoining lots in the city of New York are not under any obligation to keep the sidewalk in repair. There is no statute imposing such duty on any one but the city. No ordinance has been introduced in evidence on the subject. I know of no ordinance of the city which creates any liability of defendant to plaintiff. I understand that the law is well l and decisively settled that the remedy of a person in-1 jured in consequence of a street or sidewalk being out of i repair is against the city only, by the case of City of Rochester v. Campbell, 123 N. Y., 405.

      Thomas P. Wickes, for respondent, argued:

      I. The condition of the platform-approach which was the cause of the plaintiff’s injury constituted a nuisance. Wood on Nuisances, § 20, defines a nuisance on a roadway as follows: “Anything that can produce a nuisance, that extends over a highway, street or other public place, where people pass and repass, and have a lawful right to be or congregate, and produces material annoyance, inconvenience, discomfort and injury to those exercising those rights, is a public nuisance.” The facts in this case establish without contradiction that the plank platform-approach in question was a part of the pier or dock at the foot of One Hundred and Twenty-ninth street, and that at the place of the accident it formed a part of the public highway; that, in the platform-approach leading up to and immediately adjoining the foot of the stairway of the defendant’s bridge there was a loose and tilting plank which projected two, three, or four inches above the adjoining planks. It projected so high that one could place his fingers underneath it. It could be pressed up and down, and was sprung at one end. It was loose and would work up an inch or two; two or three of the planks immediately adjoining were also loose and tilting the same way. “ It would stick up, and as soon as you stepped off this plank, it would go up.” The planks had originally extended to the curb of Second avenue, but had been cut off by the defendant’s company to put in a pier for the west stairway of the bridge. No authorization for such cutting granted by the municipality was shown by the defendant. The planks had been continually in an unsafe condition, and repaired by the company’s servants. The stairways were open in August, 1887. (a.) Previously to that, the company had taken up these planks and placed them nearer together, and inserted another plank or planks. (5.) A short time after the opening of the bridge, one of these planks became loose and stuck up, and the company repaired it. (c.) “In the latter part of 1887, or the first part of 1888,” one of these planks was spiked down, [d.) Two months before this accident, the plank which caused the accident was loose and had sprung up, and shortly after the accident and in the spring of 1889, the company repaired it, and certain others of the planks at that point, which were also loose. “ Any unauthorized obstruction which unnecessarily incommodes or impedes the lawful use of a highway is a public nuisance.” Thompson on Highways, 274. “ To permit it (a highway), to remain out of repair, is a public nuisance.” Sherm. & Redf, on Neg., § 332. Every element required by the above definitions, in order to constitute a nuisance, is present in the case at bar. The tilting plank was on a dock or pier forming a part of a highway, over which people passed and repassed; it unnecessarily incommoded the public and caused annoyance and injury; it had remained unrepaired for some time and was a continuous menace to the public safety. The adjudicated cases also confirm this view that such a condition of affairs constitute a nuisance. In Ahern v. Steele, 48 Hun, 519, affirmed in 115 N. Y., 203, Judge Van Brunt held under similar facts, “ The wharf was open to the public, it is treated as a public street, and when it becomes out of repair, it is a public nuisance.” The case of Swords v. Edgar, 50 N. Y., 34, held that neglect of this duty, the suffering the pier to become dangerous to those lawfully coming up, is the “ creation of a nuisance.” Dygert v. Schenk, 23 Wend., 446, held where an accident happened through a defective plank in a bridge across a ditch, that “ the moment the plank became hable to slide from the bridge, or any other serious difference arose against its safety as compared with the original unbroken ground, the ditch took the character of a nuisance.” Oshkosh v. M. & L. W. R. Co., 74 Wisc., 534, held that “the acts of the railroad company constitute a nuisance, for it has no authority to use the street for its roadbed, without restoring it to its former condition.” Radway v. Briggs, 37 N. Y., 258; Rex v. Russell, 6 East, 427. Wood on Nuisances, 1st ed., states at § 319, “it may be regarded as well settled that a highway or bridge that from any cause is rendered unsafe for the ordinary purposes of public travel is indictable as a nuisance,” and again in § 324: “ It may be stated as a general proposition that any defect that impairs the safety of the highway for purposes of travel, or essentially interferes with its convenient use, is an indictable and actionable nuisance at common law.” And even if the original construction by any chance be considered as authorized, the subsequent lack of repair made it a nuisance. The general rule is well stated in Irvine v. Wood, 51 N. Y., 224; in this case there was no evidence that the coal-hole was authorized; the court said—“It may then b.e treated as a nuisance being an unauthorized excavation in the street,” and the case further held that even were the excavation authorized it must be kept properly and carefully covered “ so as not to be perilous to travelers upon the street,” or it would become a nuisance. In Woram v. Noble, 41 Hun, 398, where a coal-hole was constructed, a cover put on, and the sidewalk restored to a safe condition, but subsequently the stone on one side of the cover sank, allowing the cover to tilt, it was held that the coal-hole became a nuisance immediately upon the subsidence of the stone forming the bed of the cover. Congreve v. Smith, 18 N. Y., 79; Creed v. Hartman, 29 Ib., 591; Cosgrove v. Morgan, 18 Ib., 84; Mairs v. Man. R. E. Association, 89 Ib., 503; Clifford v. Dam, 81 Ib., 56; Callanan v. Gilman, 107 Ib., 360; Wolf v. Kilpatrick, 101 Ib., 146.
    II. The defendant, the Suburban Rapid Transit Company, having created this nuisance without special authority, is liable, irrespective of the question of control of the platform approach. No authorization by the dock department or any other municipal officer was shown. It must also be remembered that over this platform the park department had no authority, its jurisdiction being confined to the Twenty-third and Twenty-fourth Wards. Consolidation Act, §§ 670, 671. The circumstances in the case at bar are very much like those which appear in the case of Dygert v. Schenck (1840) reported in the 23d of Wendel, p. 446. In this case it appeared that the defendant in the year 1826 dug a race-way across a public road to conduct water to his mill, and built a bridge across such race-way which ever since had been used by the public as a part of thé road. In 1837 a horse belonging to. the plaintiff fell through the bridge, in consequence of one of the planks composing the flooring of the bridge being loose, and received great injury. The plaintiff was nonsuited below, but this judgment was reversed, the court holding, among other things, as follows: All the public could require was that he should make and keep the road as good as it was before he dug his ditch. That he accomplished by building a substantial bridge originally which did not get out of repair for a number of years. The road, however, in the end proved to be less safe than it was when the bridge was first built, and certainly less so than before the ditch was dug. In suffering this the defendant came short of his obligation to the public. Any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers is a nuisance. * * * Special damage arising from it therefore furnishes ground for a private action without regard to the question of negligence in him who digs it. The utmost care to prevent mischief will not protect him, if the injury happen without gross carelessness on the side of the sufferer.” The law was settled in the case of Congreve v. Smith, supra, and this case has since been universally approved and followed. The court there held: “ The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it, or renders its use hazardous by doing anything upon, above or below the surface is guilty of a nuisance; and those injured have a remedy by action against the author or person continuing the nuisance. * * * There can be no difference in regard to the nature of the act or the rule of liability, whether the fee of the land within the limits of the easement is in a municipal corporation or in him by whom the act complained of was done. In either case the act of injuring the easement was illegal.”
    III. The defendant, the Suburban Rapid Transit Company, was liable for the continuance of this nuisance. There is no dispute but that the company, whether lawfully or unlawfully, cut off the planks at this place, for it is so admitted by the stipulation, thus either creating a nuisance or making the platform-approach liable to become a nuisance at any time through lack of repair. Assuming, but not conceding, that the original act was lawful, the question then is whether at the time of the accident the company was responsible for the condition of the plank in question. The plaintiff claims that the liability of the company is clearly and unmistakably shown in the following ways : (1.) The company originally constructed the platform-approach, in connection with the dock-department, and paid six-elevenths of the cost directly to the contractors, Walls & Van Riper. (2.) The Suburban Rapid Transit Company owned or controlled the dock at the place of the accident and at the time of the accident. It was therefore responsible for the careful repair and maintenance in a safe condition of the platform-approach. (3.) Irrespective of the question of ownership or control, the platform in question formed a convenient and necessary approach to the bridge, and was a part of the defendant’s bridge. It was therefore the duty of the defendant to keep and maintain this platform in safe and proper condition. In the case of Hayes v. The New York Central, etc., Railway Company, 9 Hun, 63, the general term of the Supreme Court, Third Department, held in 1876 that the railway company in building a bridge for its convenience over a road, and for the purpose of the bridge disturbing the original roadway, is bound to keep the new approaches made by its disturbance of said roadway in repair. “ The approaches are a necessary part of the bridge.” The court said, referring to the permission given to the defendant to construct its bridge, “ This permission acted upon implies an obligation to maintain.” Referring to the case last cited, the Court of Appeals in Carpenter v. The City of Cohoes, held that the approach in question was constructively a part of the bridge (81 N. Y., 24). To the same effect are many New England cases which are cited by the learned counsel for the respondent in the Hayes case, supra. (4.) The Suburban Rapid Transit Company bound themselves by the contract with the park department to keep the platform-approach in repair, and this obligation imposed the corresponding liability. (5.) Further, the defendant company showed by its acts that it considered itself hound by this clause of the contract, and, in fact, the attitude of the company towards this platform-approach up to and after the time of the accident was always that of owner, or one responsible for the condition of said platform-approach. The company also showed by its acts that this platform could reasonably he considered a part of the bridge.
    IV. The fact that the city also may have been under obligations to keep its highway safe in no way relieves the defendant from the duty of keeping this platform-approach in good repair. Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y., 225, held : “ The city had a duty to perform. The street railroad also. An action might perhaps lie against either for the omission of duty leading to the death of the testator, but because this crossing had many guardians the obligation upon the defendants was in no particular diminished.” Fash v.
      Third Avenue R. R. Co., 1 Daly, 148, held : That “ it was wholly immaterial whether the projection was caused by the failure of the corporation of the city of New York to repair the streets in the locality of the accident.” “ The defendants having undertaken to lay down a railroad track along the avenue, which was a public road, they were bound to lay it down properly and to see that it was kept in a proper condition thereafter.” So in Hayes v. N. Y. C. & H. R. R. R. Co., supra, where defendant contended “ that even if they are liable to maintain the substructure of the approaches, yet that the surface of the roadway, the superstructure, should be kept in order by the commissioners of highways, as they would have been obliged to keep it in order before the slope was raised,” it was held (citing N. S. R. W. v. Dale, 8 El. & B., 836), that the bridge surface and approaches must be kept in repair by the railroad company. Carpenter v. C. P. N. & E. R. R. Co., 11 Abb., N. S., 416; Colegrove v. H. & N. H. R. R. Co., 6 Duer, 328. There is also a long line of cases in accord that hold that although it is the duty of the city to keep its highways in repair, yet the city may recover over against one through whose misfeasance or nonfeasance the city has been compelled to answer in damages. Troy v. T. & L. R. R. Co., 49 N. Y., 657; Seneca Falls v. Zalinski, 8 Hun, 571; Rochester v. Montgomery, 72 N. Y., 65; Port Jervis v. 1st Nat. Bank, 96 Ib., 550; Mayor v. Dimick, 49 Hun, 241.
    Y. The case of Rochester v. Campbell, 123 N. Y., 405, the authority most relied upon by the defendant, is not analogous to the case at bar, and in no way is it decisive of this case as against the plaintiff’s right to recover.
    YI. The question of contributory negligence on the part of the plaintiff was correctly left to the jury, and their verdict in favor of the plaintiff is conclusive.
   By the Court.—Gildersleeve, J.

We are satisfied, from a careful examination of the evidence in this case, that in constructing the bridge and its footways over the Harlem river, the defendant, at the point where the plaintiff received her injury, interfered with a part of the public highway, without authority or warrant of law therefor. The platform-approach to the stairway leading to the footway of the bridge must be regarded as an appendage to and practically a part of the bridge. The defendant undertook to construct and maintain a bridge over the river, “ open for the free use of all persons desiring, to pass and re-pass over the same on foot.” The structure, without suitable approaches, would be useless to foot-passengers, and could not be said to be a bridge. The approaches are as necessary as the structure itself. ■ S. & R. Neg. [3d ed.] § 253; Hayes v. The New York Central, etc., R. R. Co., 9 Hun, 63; Carpenter v. The City of Cohoes, 81 N. Y., 21; The Commonwealth v. Deerfield, 6 Allen, 455.

By the terms of defendant’s contract, defendant was bound to keep “ the bridge and its footways and approaches and stairways and roofs in complete order.” Also both principle and authority imposed upon the defendant the obligation of keeping the same in repair. Hayes v. The New York Central, etc., R. R. Co., supra, and cases above cited.

One of the planks in said platform-approach in some manner became loose, so that the end projected along the other planks of the platform, and the accident was caused by the plaintiff catching her toe against the end of this plank. This defective condition of the platform approach rendered a part of the public street unsafe for the ordinary purposes of travel, and constituted a nuisance. Wood on Nuisance, §§20, 319 and 324; Thompson on Highways, 274 ; Sherman & Redfield on Negligence, § 332 ; Ahern v. Steele, 115 N. Y., 203.

The evidence under the law as we understand it, and as set forth in the authorities above quoted, placed the responsibility for the repair and maintenance of the platform-approach in a safe condition upon the defendant. There was no evidence tending to make any other person or organization than the defendant responsible for the condition of the plank at the time the plaintiff fell. This was the instruction of the learned trial judge to the jury, and we find it to be correct.

The defendant owed to the public the duty of keeping the highway, with which it had interfered, in as good a condition and as safe as it was before the interference. This obligation it did not keep. Any special damage arising from its failure in this respect furnishes ground for a private action, without regard to the question of negligence on the part of the defendant, (Dygert v. Schenck, 23 Wend., 446; Congreve v. Smith, 18 N. Y., 79; Clifford v. Dam, 81 Ib., 56; Mairs v. Man. R. E. Asso., 89 Ib., 493; Wolf v. Kilpatrick, 101. Ib., 146; Cohen v. The Mayor, etc., 113 Ib., 538).

For these = reasons the defendant was liable for the injury sustained by the plaintiff, unless her own negligence contributed thereto. The question of contributory negligence on the part of the plaintiff was correctly left to the jury, and their conclusion in her favor on this point was fully justified by the evidence.

An examination of the exceptions fails to disclose any rulings prejudicial to the substantial rights of the defendant.

The injury sustained by the plaintiff was serious ; it caused her great suffering and will give her pain and trouble all her life. We do not think the damages • awarded by the jury excessive.

The judgment and order appealed from are affirmed, with costs.

Freedman and Dugro, JJ., concurred.


author: Per Curiam:

text:
    FRANZ O. MATTHIESSEN, et al., as Executors, etc., Respondents v. JOHN W. KOHLSAAT, Appellant

      Usury, when defence of must be pleaded.

    The action is brought to recover the sum of $3,000 which the complaint alleged was loaned by the plaintiffs' testator on or about April 15, 1SS5, to the defendant to be repaid on or before May 1st following. The answer contained a general denial. On the trial the plaintiffs offered, and the court received, in evidence against the defendant’s objection a paper in the following words : “ New York, April 15th, 1885. Received from W. A. Wilchers, Esq., three thousand dollars for which I agree to pay him April 30, 1885, $3,250. Jno. W. Kohlsaat.” Against like objection the court admitted in evidence a letter from the defendant to plaintiffs’ testator, dated May 16, 1885, containing the following words : ‘' Herewith please find 23 Mexican State Bonds of the face value of $1,000 each, as collateral security until payment of the $3,250 for loan of $3,000, April 15, 1885.” Plaintiffs then rested and defendant moved to dismiss the complaint on the ground that no evidence had been shown within the pleadings and that the alleged agreement as shown by the note and letter was void for usury. The court denied the motion and subsequently directed a verdict in favor of the plaintiffs for three thousand dollars and interest.

      Held, that the defence of usury was unavailing to the defendant because not pleaded, while there was evidence from which the jury, if the issue had been made, might have found that defendant on obtaining the loan had further agreed to pay a usurious rate of interest, usury did not conclusively appear as matter of law from the evidence.
    Upon the defendant’s contention that the evidence offered did not sustain the transaction alleged in the complaint, but if anything an altogether different transaction, Meld that there was not a fatal variance between the proof and the allegations of the complaint.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided October 10, 1891.
    Appeal from a judgment entered upon a verdict for plaintiffs as directed by the court. The facts sufficiently appear in the head note.

      Burnett & Whitney, attorneys, and Edward B. Whitney of counsel, for appellant.

      Martin & Smith, attorneys, and George A. Strong of counsel, for respondents.
   Per Curiam:

The appeal is from the judgment only, and consequently only questions of law can be reviewed. At the trial no claim was made that there was any question for the jury, nor was there a fatal variance between the proof and the allegations of the complaint. The action was brought to recover $3,000, being the amount of a loan made to defendant by the plaintiffs’ testator, and the complaint alleged the making of the said loan and a promise on the part of the defendant to repay the $3,000. The proof established the allegations of the complaint and incidentally some evidence was introduced from which the jury, if the issue had been made, might have found that the defendant, on obtaining the loan, had further agreed to pay a usurious rate of interest. But the only defence pleaded was a general denial and usury did not conclusively appear as matter of law from the evidence adduced by the plaintiffs. Under the circumstances stated the defence of usury was not available to the defendant. Millbank v. Jones, 28 N. E. Rep., 31, and cases there cited.

The record discloses no error, and the judgment must therefore be affirmed, with costs.


author: Per Curiam.

text:
    FANNIE J. DUFF, Appellant v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Notice required under Chap. 578, Laws 1SS6, of intention to bring action— What sufficient compliance with statute.

    Under the provisions of Chap. 572 Laws 1886, no action brought against the mayor, etc., of any city having fifty thousand inhabitants or over to recover damages for personal injuries caused by such mayor, etc., shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which such injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall have been accrued. The action was brought to recover damages for personal injuries sustained through defendant’s negligence on June 4, 1888. Notice of the time and place of the accident and of the claim made therefor was only filed with the comptroller on September 24,1888, and onNovember 5,1888, the summons and complaint were served on the corporation counsel. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that no notice of intention to commence suit had been filed with the counsel to the corporation, which motion was granted. Held error, that the service of the summons and complaint was a sufficient compliance with the terms of the statute.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided October 10, 1891.
    Appeal by plaintiff from an order dismissing the complaint and directing exceptions to be heard in the first instance at the general term. The facts are sufficiently stated in the head note.

      Douglas A. Levien, Jr., attorney for appellant.

      William H. Clark, counsel to the corporation, and Theodore Connoly of counsel, for respondent.
   Per Curiam.

We are disposed to apply the reasoning in Meyer v. The Mayor, et al., 14 Daly, 395, and Denair v. The City of Brooklyn, 5 N. Y. Supp., 835, to the facts of this case.

The intent of the legislature must be sought, and governs. The act of 1886 and surrounding circumstances cause the opinion that it was not the legislative intent that a notice of intention other than such as is conveyed by the service of a summons and complaint should be required to be filed in cases where the action is brought within six months of the time when the cause of action accrued. Reining, et al., v. The City of Buffalo, 102 N. Y., 308, and Babcock v. The Mayor, et al., 56 Hun, 196, are distinguishable from the present case. In the Babcock case the action was commenced more than six months after the accident happened.

Plaintiff’s exceptions should be sustained, the order of dismissal vacated and a new trial ordered, with costs to abide the event.