Mayor of New York v. Dimmick — 11 N.Y. St. Rep. 519

Majority

p. 519

The Mayor, etc., of New York, v. Jeremiah W. Dimmick.

(Supreme Court, Special Term, New York County,

Filed November 15, 1887.)

Headnote

Action—Sidewalk accidents—City can maintain action against owner, op awning por sum it was obliged to pay injured party.

William Koerner, who was injured hy the falling of a rotten awning post at Eighty-eighth street and Park avenue, in front of defendant’s premises, recovered $3,718 damages in a suit against the city. Held, that the city can maintain an action against the owner of the awning for the sum it was obliged to pay Koerner.

Demurrer to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action.

Morgan J. O’Brien, corporation counsel, for the city; Smith & Dougherty, for def’t.

—The facts alleged in the complaint and admitted by the demurrer establish that the defendant maintained a nuisance in a public street in the city of New York, and that in consequence of such wrongful

p. 520

act the plaintiff sustained damage by being compelled to pay a judgment recovered against it by one Koerner, and for the amount of such damage the complaint demands judgment.

It is settled in this state that such an action can be maintained. In the case of The Village of Port Jervis v. The First National Bank ( 96 N. Y., 555 ) it was held that “this liability rose out of the affirmative act of the defendant, and renders him liable, not only to the party injured, but also immediately liable to any party who has been damnified by his neglect. The liability in such case is predicated upon the negligent character of the act which caused the injury, and the general principle of the law which makes a party responsible for the consequences of bis wrongful conduct.” The foundation of the liability therefore depends upon the wrongful act of the defendant. If in consequence of his negligence the street became unsafe, he would be responsible to any person injured, whether the city had notice of the unsafe condition of the street or not.

The plaintiff stands in the position of having been compelled to pay tl>e damages caused by the wrongful act of the defendant; and having been compelled to pay such damage, it asks to recover from the persons whose wrongful act caused the injury the amount that it has been compelled to pay; and the wrongdoers cannot complain because the complaint does not allege all the facts that would justify a recovery against the plaintiff, so long as the complaint alleges the facts that show that the defendant is hable for the injuries for which the plaintiff was made hable.

An allegation that the person injured commenced an action against the plaintiff and recovered a judgment, and that the injuries for which the judgment was obtained were caused by the negligent act of defendant is sufficient.

The plaintiff should therefore have judgment on the demurrer, with costs, with leave to the defendant to withdraw the demurrer and answer within twenty days on payment of costs.