Walsh v. Mayor of New York & Brooklyn — 11 N.Y. St. Rep. 401

Majority

p. 401

Patrick Walsh, Resp’t, v. The Mayor, Aldermen and Commonalty of the City of New York and City of Brooklyn, App’lts.

(Court of Appeals,

Filed October 18, 1887.)

Headnote

Municipal corporations—Brooklyn bridge—Trustees are agents of THE TWO CITIES.

The trustees of the New York and Brooklyn bridge, appointed by the city officials, represent the two cities as their agents. The trustees and the persons employed by them are the agents and servants of the said cities, for whose careless and negligent acts the cities are liable.

Appeal from a judgment of the supreme court, general term, first department, affirming a judgment entered upon an order of the Hew York county special term overruling the defendant’s demurrer to the complaint.

D. J. Dean, for app’lts; Charles J. Patterson, for resp’t.

—The following is a copy of the plaintiff’s complaint in this action:

First. That now, and at all times hereinafter mentioned, the defendants were, and each of them was, a domestic municipal corporation, duly incorporated under the laws of this state, for the municipal government of the cities of Hew York and Brooklyn, in this state, respectively.

Second. That, on the 12th day of May, 1883, said defendants were engaged in the construction of a work known as "the Hew York and Brooklyn bridge, through their agents and officers, who were known as the trustees of the said Hew York and Brooklyn bridge, which said bridge was in

p. 402

tended to and did span the waters of the East river, and connect the two cities aforesaid.

Third. Said defendants, acting through the said trustees as their agents, as aforesaid, employed a certain laborer to labor for them in the construction of the said bridge, and while said laborer was so doing, and acting within the scope of his employment for said defendants, he carelessly and negligently let fall from the said bridge a heavy block of wood, which, being allowed to fall as aforesaid, struck the plaintiff upon the foot as he was passing over Water street, a public highway in the city of New York, beneath said bridge, whereby the bones of his foot were broken and it was otherwise severely injured and bruised, and he was made ill and lame, and prevented from attending to his business, to his damage in the sum of $10,000, all of which happened without fault or neglect on the plaintiffs part. •

Fourth. At least thirty days before the commencement of this action the claim of the plaintiff, upon which this action is founded, was presented to the comptroller of the city of New York, and also to the chief fiscal officer of the city of Brooklyn, separately, in writing, and duly verified, and each of said officers have neglected and refused to make an adjustment or payment thereof for more than thirty days after such presentment.

Wherefore, said plaintiff demands judgment against the defendant for $10,000, and the costs of this action.

To this complaint the mayor, aldermen and commonalty of the city of New York demurred on the ground that it appears, upon the face of the complaint, that it does not state facts sufficient to constitute a cause of action. The issue of law formed by the demurrer was brought to argument at a special term of the supreme court, and the demurrer was overruled and an interlocutory judgment was ordered for the plaintiff. The Mayor, etc., of New York then appealed to the general term and there the order was affirmed and this appeal was then brought.

The contention of the appellant is that the trustees of the New York and Brooklyn Bridge are not the agents of the city of New York and that the city therefore is not the superior of the laborers in the employment of the trustees and not responsible for their negligent acts and omissions.

The New York and Brooklyn Bridge was constructed under the acts, chap. 399 of the laws of 1867, chap. 601 of the laws of 1874, and chap. 300 of the laws of 1875. In § 1 of the latter act it was provided that the bridge should be completed and managed “for and on behalf of the cities of New York and Brooklyn as a consolidated district for that, purpose.” As was said by us in People ex rel. Murphy v. Kelly ( 76 N. Y., 475 , 489), it is not perceived for what pur

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pose the language “as a consolidated district” found in the act of 1875 was inserted. It certainly has no bearing upon this discussion and adds nothing to the force of the other language used. The bridge was to be completed and managed on behalf of the two cities jointly. Section 3 of the same act provides that the bridge “shall be a public work to be constructed by the two cities.” The two cities, in the proportions mentioned in the act, were to furnish all the funds for the construction of the bridge. The trustees of the bridge were to be appointed by the city officials of the two cities. All the real estate purchased by the trustees was to belong to the two cities jointly, and the bridge and all its appurtenances and ah the property connected with it was to belong absolutely to the two cities in shares to each of the cities equally to the amount paid by them for the construction of the bridge and for the land and appurtenances thereof. All the revenues of the bridge were to belong to the two cities and were to be used for the payment of the indebtedness created by the cities for its construction. As the bridge is the property of the two cities, any revenue derived therefrom after the payment of debts created for the construction thereof would go into the treasuries of the two cities. So in every sense and in every view this bridge was constructed and is managed for the two cities, and the trustees appointed by the city officials represent the two cities as their agents. Hence, they and the persons employed by them are the agents and sérvants of the cities for whose careless and negligent acts they are liable. Ehrgott v. The Mayor, 96 N. Y., 264 . This conclusion, we think, is rendered necessary by our. prior decisions in the case of the People v. Kelly (supra), and in the case of this plaintiff for this same accident against the trustees of the New York and Brooklyn Bridge ( 96 N. Y., 427 ).

The judgment should be affirmed.

All concur.