Hyperlawhypertext legal database Cassidy v. City of Poughkeepsie 24 N.Y.S. 523

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Cassidy v. City of Poughkeepsie

24 N.Y.S. 523 Court N.Y. Gen. Term Decision date 1893-07-28 English

Delivered by PRATT, J.

Contents

Majority

p. 523
(71 Hun, 144.)
CASSIDY v. CITY OF POUGHKEEPSIE.
(Supreme Court, General Term, Second Department.
July 28, 1893.)

Headnote

Municipal Corporations—Defective Streets.
The fact that a sewer system was constructed by water commissioners, free from any control by the city, does not exempt the city from liability for an accident happening 15 years thereafter, as a result of the cover of a sewer basin in the street having become worn and out of repair from protracted use.
Appeal from circuit court, Dutchess county.
Action by Susan Cassidy against the city of Poughkeepsie for "injuries resulting from a defective cover to a sewer basin in the ■street. From a judgment for plaintiff, defendant appeals.
Affirmed.
p. 524
Argued before DYKMAH and PRATT, JJ.
C. B. Herrick, for appellant.
Defendant city is not liable for any defects in the sewer basin, since it was constructed by water commissioners, free from control by the city, and the adoption of the plan was an act quasi judicial in its nature. Maxmilian v. Mayor, 62 N. Y. 160 ; Ham v. Mayor, 70 N. Y. 459 ; Ehrgott v. Mayor, 96 N. Y. 264 ; 2 Dill. Mun. Corp. § 968; Pettengill v. Yonkers, 116 N. Y. 558 , 22 N. E. Rep. 1095 ; Urquhart v. Ogdensburgh, 91 N. Y. 67 ; Monk v. Town of New Utrecht, 104 N. Y. 552 , 11 N. E. Rep. 268 ; Rhinelander v. City of Lockport, (Sup.) 14 N. Y. Supp. 850 ; 1 Shear. & R. Neg. § 269 et seq; Sherman v. Kortright, 52 Barb. 267 .
Defendant city is bound to exercise only reasonable care and diligence to prevent accidents. Jenney v. City of Brooklyn, 120 N. Y. 164 , 24 N. E. Rep. 274 ; Hunt v. Mayor, 109 N. Y. 134 , 16 N. E. Rep. 320 ; Hubbell v. City of Yonkers, 104 N. Y. 434 , 10 N. E. Rep. 858 ; Tonkins v. Ferry Co., 47 Hun, 562 ; Ray, Imp. Dut. 136; Cleveland v. Steamboat Co., 68 N. Y 306 .
J. F. Ringwood, (J. Morschauser, of counsel,) for respondent.

The trial judge gave this case to the jury upon the simple question of whether the plaintiff had suffered her damages through the neglect of the defendant to discharge its duty to care for the safety of the public streets in respect to that portion of Duane street through an opening in which the plaintiff had fallen. This was a plain issue, upon a sound basis of law, from the determination of which by the jury the defendant is not relieved by the argument and authorities presented by its learned counsel. The sewer basin and its cover were constructed in 1876. Granting that the city was not responsible for the action of the water commissioners, either in the adoption of the plan or the actual building of the works, it by no means follows that it could wholly neglect, for a period of 15 years, to look after the safety of the street so far as it was affected by the structure erected, and remain free from all responsibility. It would seem that the cover or bridge was ñt and adequate for many years, and evidence was given upon the trial to show that its instability had arisen from the ordinary incidents of protracted use. Common prudence dictated that the city, in the exercise of care over its streets, should look after the effects of such use upon a structure quite likely to become dangerous in the course of time; and this duty was equally incumbent where the foothold had been originally constructed by lawful authority, as if it had been the work of trespass or the elements. The trial judge appears to have concurred with the defendant’s counsel in his views of the limitations upon municipal liability applicable to the case. The case rested, and its trial was steadily conducted upon the fundamental ground of the defendant’s liability for its own negligence. The jury, thus guided, found the facts sufficient to make out the plaintiff’s case, and we see no reason why their verdict should be disturbed.

The judgment must be affirmed, with costs.

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