Von Longerke v. City of New York

In 1905, the defendants Eidlitz, as general contractors, were engaged in erecting a large building between Thirty-Fourth and Thirty-Fifth streets, on the east side of Fifth avenue in the city of New York. In carrying out the contract, it became necessary for them, in order to make proper sewer connections with the building to be erected, to dig a tunnel under the roadbed of Fifth avenue parallel to the curb from about the center of the building to be erected to a point some 60 feet south of Thirty-Fourth street. To do this work they sublet a contract' to one Byrne, who, in turn, sublet it to. the defendant Pilkington. Thereafter the city issued permits for the work, and Pilkington started excavating at the southerly end, and on January 5, 1906, had proceeded about 40 feet, when a large water main which ran down Fifth avenue close to' the tunnel broke nearly in front of the plaintiff’s store. The water escaping from the main, flowed into the street, and a portion of it entered the basement of the plaintiff’s store through the cellar wall, injuring and. destroying theiir goods to the extent of several thousand dollars, and prevented one of their sales rooms being used for. several months. This action was brought to recover the damages alleged to have been sustained by reason thereof. At the close of the trial the court submitted to the jury five specific questions of fact: (1) Were the plaintiffs free from negligence? (2) Was the city of New York guilty of negligence? (3) Were the defendants-Eidlitz guilty of negligence? (4) Was defendant Pilkington guilty of negligence? (5) What was the amount .of damage, if any, suffered by the plaintiffs? The first four questions were answered in the affirmative, and the fifth, $7,148.99. The court thereupon directed a verdict for this sum against the defendants city of New York and Pilkington, and dismissed the complaint against Eidlitz & Son. To such direction appropriate exceptions were taken by the city and Pilkington, and the plaintiffs also excepted to -the dismissal of the complaint as. to Eidlitz & Son. Judgment was thereafter entered in conformity with the verdict directed, and the plaintiffs appeal .from so much of it as dismissed the complaint as to Eidlitz & Son, and the city of New York and Pilkington separately appeal from the judgment and also from orders denying their respective motions for a new trial..

[1] But the appellant Pilkington insists that the judgment is erroneous as to him because the work was done not by him, but by the Pilkington Construction Company. He testified that the Pilkington Construction Company is a domestic corporation, of which he is the president, treasurer, and one of the directors, and that he, as its president, did the excavating under "a contract made by it and not by himself individually. The court left it to the jury to say whether it was Pilkington personally, or the Pilkington Construction Company, which hadi made the contract and done the work. The jury found it was Pilkington personally, and the evidence is sufficient to sustain the finding. The contract with Byrne, in so far as it was evidenced by any writing, was a letter addressed to the Pilkington Construction Company: but there was no documentary proof to show that any company by that name had ever been incorporated, which is a suspicious circumstance in and of itself. Pilkington testified there was such a corporation; that its capital stock was $2,500; that he was the owner of 10 shards; that it had an office in a private residence, but there was nothing to indicate by sign or otherwise that it had an office there; that meetings of the stockholders were occasionally held at different places, but he could not tell who they or the incorporators were; and that the corporation had no bank account, but all of its funds were deposited in his persbnal account. It also appeared that the permit from the city, by which dynamite for blasting was stored while the work was being carried on, was issued to Pilkington personally, and the license issued to the persons who did the blasting, which it was the contractor’s duty to see before permitting them to work, recited that they were employed by Pilkington. He admitted that he sometimes did such.work on his own

[2] Before he could be relieved of responsibility, it was incumbent upon him to show that at least a de facto corporation existed and was the one performing the work. There was no evidence of any bona fide attempt on the part of the alleged stockholders to comply with the statute in creating a corporation, except Pilkington’s general statement that the corporation was duly organized, Something more than this had to be shown.

[3] In order to establish the. existence of a de facto corporation, it is'necessary to show not only that there is a law under which’ the corporation might be organized, and an attempt to organize it, but that corporate powers have been thereafter exercised. Methodist Church v. Pickett, 19 N. Y. 482 ; Emery v. De Peyster, 77 App. Div. 65 , 78 N. Y. Supp. 1056 ; Van Buren v. Reformed Church, 62 Barb, 495 . Not only this, hut the jury was not bound to believe Pilkington’s statement that a corporation had been formed, even though it were not contradicted. He was an interested witness, and this, taken in connection with the other evidence, especially the absence of documentary proof, was sufficient to justify the jury in disregarding it. Hull v. Littauer, 162 N. Y. 569 , 57 N. E. 102 .

Second, as to the city of New York: Its liability is based upon two claims: (a) That it did not see to it that the plan was followed and that the work of excavation was done in such a way as to prevent injury to third parties; and (b) that it did not use proper diligence in turning off- the water after it had been given notice of the break in the pipe.

[4] The judgment could not be sustained upon the first ground, because there was no duty resting upon the city to supervise the work. It is true the city through the bureau of sewers, issued a permit to make the excavation; but the permit was to construct a tunnel running parallel to, and about four feet westerly from, the easterly curb of the avenue, and that the work was to be done under the direction of the chief engineers of sewers. But this did not obligate the city to see to it that due care was used in the prosecution of the work itself, nor render it liable for the negligence of the contractor. The thing authorized by the city was not a nuisance, nor was it dangerous per se. Had the plan been followed, the pipe would not have been broken, and the damages which resulted were by reason of the contractor’s failure to follow it, of which the city had no notice. Had the city issued a permit for a nuisance, or for the doing of a thing eminently dangerous in itself, such as an obstruction in the street or setting off fireworks in a public place where a large number of people were assembled, then it might be held liable by reason of damages resulting therefrom. Parks v. City of New York, 111 App. Div. 836 , 98 N. Y. Supp. 94 , affirmed 187 N. Y. 555 , 80 N. E. 1115 ; Godfrey v. City of New York, 104 App. Div. 357 , 93 N. Y. Supp. 899 , affirmed 185 N. Y. 563 , 77 N. E. 1187 ; Speir v. City of Brooklyn, 139 N. Y. 6 , 34 N. E. 727 , 21 L. R. A. 641 , 36 Am. St. Rep. 664 ; Cohen v. Mayor, 113 N. Y. 532 , 21 N. E. 700 , 4 L. R.

“It is quite well settled, that a municipal corporation is not liable for the acts of its licensees unless it is shown that they were authorized to perform an act dangerous in itself. * * * Here, there is nothing to show that the authorized act was intrinsically dangerous; on the contrary, the danger arose from the negligent manner in which the licensees performed the act.”

[5] Nor does the fact that the city reserved to itself the right to direct the work through its chief engineer of sewers change the rule, because, as a matter of fact, he never attempted to direct it (Uppington v. City of N. Y., 165 N. Y. 222 , 59 N. E. 91 , 53 L. R. A. 550 ), or because it issued permits for the sinking of shafts from the surface of the street at various points along the line of the tunnel, for these shafts in no way contributed to the breaking of the pipe. The city’s interest was properly protected because a recovery was not permitted upon this ground.

[6] The trial court did) not submit to the jury the question of the city’s negligence in giving the permit or in failing to properly supervise the work. On the contrary, the only question submitted to the jury, so far as the city was concerned, was whether it was negligent in failing to promptly turn off the water after it had notice of the break in the pipe, and upon this branch of the case I think there is ample evidence to sustain the finding against it. The break was discovered about 5 o’clock in the afternoon, when the department of water supply having charge of that part of the city was notified. A large volume of water was then flowing into the street, and it was not stopped) until about 1:30 o’clock the next morning. In the meantime streets for a number of blocks immediately adjacent to the break were flooded to a depth of several inches, and plaintiffs’ premises were flooded, doing the damage complained of. Attempt is made to excuse the delay of 8% hours on the part of the city in shutting off the water by showing there were six water mains under Fifth avenue at this point, and it was impossible to determine which pipe was broken; considerable time being lost in closing the gates in wrong mains. But this explanation was not satisfactory to the jury, and it could not very well have been when the fact is considered that no attempt was made to close any of the-gates until about 8 o’clock, and then nothing was accomplished until after the arrival (11:30 p. m.) of an engineer in the department of water supply, who, by a simple

[7] The city was under a legal obligation to use diligence in shutting off the water, and for its failure to do so was liable to persons suffering damage by reason thereof. Messersmith v. City of Buffalo, 138 App. Div. 427 , 122 N. Y. Supp. 918 ; Dunstan v. City of New York, 91 App. Div. 355 , 86 N. Y. Supp. 562 ; McAvoy v. Mayor, 54 How. Prac. 245; Dillon on Municipal Corporations (5th Ed.) § 1670.

[8, 9] Third, as to the defendants Eidlitz: The finding of the jury that the damage sustained by the plaintiffs was due to their negligence is against the evidence, and for that reason the court properly dismissed the complaint as to them. There is absolutely no evidence that they, or their servants, were in any way negligent. They took no part in the excavating and never attempted to supervise or direct what was done in any way. They had a right to sublet the contract to a competent person, and the evidence shows that the subcontractor was such. Pilkington was an independent contractor, and they could not be made liable for his negligence. Plaintiffs’ counsel recognizes this rule, but'contends that the case comes within the exception, which is that liability cannot be avoided where the thing contracted to" be done is a nuisance or dangerous per se. This contention is undoubtedly true; but, as above shown, the excavation was not work of such character. It was not a nuisance, not dangerous per se. Had Pilkington followed the plan in making the tunnel, it would not, at any place, have come within eight feet of the pipe which was broken and would have been at least two feet east of the intervening pipe. The defendants Eidlitz are therefore not liable for Pilkington’s negligence. Uppington v. City of New York, supra; Berg v. Parsons, 156 N. Y. 109 , 50 N. E. 957 , 41 L. R. A. 391 , 66 Am. St. Rep. 542 ; Herrington v. Village of Lansingburgh, 110 N. Y. 145 , 17 N. E. 728 , 6 Am. St. Rep. 348 .

Finally, as to the damages: I think there was an abundance of evidence to sustain the jury’s finding on that subject, and I am also of the opinion the extra allowance of costs was properly granted.

The judgment and orders appealed from, therefore, are affirmed, with costs to the plaintiffs against the appellants the city of New York and Pilkington, arid with costs to the defendants Eidlitz against the plaintiffs.

LAUGHLIN, MILLER, and DOWLING, JJ., concur.

I concur except as to the city of New York, and as to the city I think there should be a new trial.