Opinion
May Term, 1900.
P.M. French, Corporation Counsel, for the appellant.
Eugene Van Voorhis, for the respondent.
This action, which was brought to recover damages for personal injuries sustained by the plaintiff in consequence of a defective sidewalk in the city of Rochester, has been twice tried. Upon the first trial the plaintiff was nonsuited upon the ground that notice of the defect complained of was not given to the city officials having charge of the streets and sidewalks within a reasonable time before the occurrence of the accident, as required by section 218 of the city charter.
Thereafter a motion for a new trial was made and denied at General Term (88 Hun, 613), and from the judgment entered thereon an appeal was taken to the Court of Appeals, wherein it was held that notice of a defect in a sidewalk given to a foreman of sidewalks, clothed with general power to repair throughout a large district of the city, is notice to a city officer having charge of highways, within the meaning of the provision of the charter of the city of Rochester (Laws of 1880, chap. 14, § 218, amd. by Laws of 1890, chap. 561, § 27), requiring notice "to the city officers having charge of the highways" of a defect in a sidewalk, as a prerequisite to a right of action to recover damages for an injury caused thereby, and that, inasmuch as there was ample proof of such notice and no question made as to the defective condition of the walk, the case was improperly withheld from the jury. ( 159 N.Y. 20.)
Upon the last trial, the defendant did not deny the existence of the defect in the sidewalk, but sought to escape liability therefor, under the rule established by the Court of Appeals, by an attempt to prove that the authority of Moore, the foreman who had charge of the repairing of sidewalks within the district wherein the walk in question was located, and the one to whom notice of its defective condition was given, did not extend to stone walks, which were repaired by contractors under the supervision of the executive board, but was restricted to the repair of wooden walks.
The walk in question was constructed of flagstones, and a piece of one of the stones thereof had become broken and the earth underneath had fallen away so that at the time of the accident there existed a hole in the walk six or seven inches wide and some eighteen inches in depth. The walk had been permitted to remain in this condition for a long period of time, and on the night in question the plaintiff stepped into the hole and received injuries which resulted in the amputation of one of her legs between the ankle and the knee. Moore had received actual notice of the existence of this hole from one of the city sidewalk inspectors at least forty days prior to the accident, but took no measures to repair the same.
Upon the former trial, no question appears to have been raised as to the authority of Moore to repair this walk, but upon the second trial the members of the executive board were called as witnesses, and they gave evidence tending to prove that Moore's official duties were limited to the repair of board or wooden walks, and that he had no control or authority over stone walks.
Obviously, therefore, it became of the utmost importance to the plaintiff to show that notice of the defective condition of the walk in question had been given to a city official clothed with authority to remedy the defect, and to rebut the proof which had been thus tendered by the defendant. Witnesses were called who were permitted to testify that shortly after the accident they filled up the hole in the walk and erected a barricade around it, and that this was done by the direction and under the supervision of Moore. This class of evidence was objected to by the defendant's counsel, and the exceptions taken to its admission present the only new question with which this court has to deal upon the present appeal, the contention of the defendant being that the acts and declarations upon the part of its officers and agents subsequent to the happening of the accident in question were not competent because, although received for a specific purpose, their inevitable tendency was to accomplish another and different purpose, and consequently to prejudice the defendant.
Had this evidence been offered upon the question of the defendant's negligence, its incompetency might be urged with much propriety, even though, as seems to be conceded, no serious controversy arose upon the last trial over that particular feature of the case. ( Getty v. Town of Hamlin, 127 N.Y. 636.) But it was expressly stated by the learned trial justice that it was received for no such purpose, but simply and solely as bearing upon the question of Moore's authority.
It is now insisted, however, that the evidence was incompetent even with this limitation attached to it, and if it is to be regarded merely as evidence of an independent act or declaration, with which the defendant is not connected and for which it is in nowise responsible, it probably cannot be said that the defendant's contention is unsupported by authoritative precedent. ( Clapper v. Town of Waterford, 131 N.Y. 382; Terwilliger v. Town of Crawford, 40 App. Div. 253.)
But upon the other hand, if Moore's acts, taken in connection with other evidence which is concededly competent, tend to establish authority in him to perform those acts, we fail to see why they are not as binding upon the defendant as though they had been performed in obedience to a resolution of its common council. ( Sewell v. City of Cohoes, 11 Hun, 626; affd., 75 N.Y. 45.)
Certainly if Moore was not invested with discretionary power to repair defective stone sidewalks, no city official was; and it is absurd to assume that such an ordinary defect as the one in question must have been remedied, if at all, by a stone mason and through the medium of a special contract. The evidence of the defendant's witnesses will hardly support such a contention, for Mr. Schroth, a member of the executive board, testified that "Mr. Moore was one of the chiefs of sidewalk inspectors and had charge of the sidewalks on the east side of the river. He had charge of the inspectors and of the repair gang for sidewalks, and I believe he was the only one to whom the matter of repairing sidewalks was entrusted. In all ordinary matters of repair he went along and did them with his repair gang."
And Mr. Barnard, another member of the board, testified that "Mr. Moore was the only man who had charge of repairs on behalf of the executive board on the east side of the river and the repair of sidewalks, and he had charge of the repair gang and the inspectors of sidewalks on the east side of the river, and he had full authority to go ahead and make all ordinary repairs of sidewalks that came to his attention that his gang was capable of doing; and as a rule if it was something that they were not capable of doing it was reported to the board and a special contract was made with some outsider to do the work."
In view of this evidence we think it was clearly competent to show by Moore's acts that he was capable of making, and consequently authorized to make the repairs which he did make subsequently to the plaintiff's accident, and that such acts, therefore, do not come within the condemnation of the rule contended for by the defendant's counsel. It follows that the judgment and order appealed from should be affirmed.
All concurred.
Judgment and order affirmed, with costs.