Davis v. Town of Rochester — 49 N.Y. St. Rep. 533

Majority

p. 533

Andrew A. Davis, Resp’t, v. The Town of Rochester, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 8, 1892.)

Headnote

Towns—Negligence—Evidence.

In an action against a town.for injuries alleged to have been caused by its negligence, it is not competent to prove conversations of the plaintiff with the highway commissioner or with the members of the town board in relation to a settlement..

Appeal from a judgment of the Ulster county court, affirming a judgment of a justice’s court, entered on the verdict of a jury.

The complaint was for damages to plaintiff’s horse, sustained while traveling one of defendant’s highways, by breaking through a bridge, and alleges negligence on the part of defendant and its commissioner of highways. It also contains an allegation of an agreement for a settlement.

No evidence of negligence was given on the trial. The only testimony on this branch of the case was that the horse broke through the bridge and hurt his hind leg. After the accident it was discovered that the broken plank was rotten, but there was-no attempt to prove that the highway officers knew, or ought to-have known, of its condition.

But the plaintiff endeavored to make out his case by proving a settlement with the officers of the town. He proved, under defendant’s objection, that, in company with the commissioner of highways, he went before the town board and made a claim for damages; that, at the suggestion of members of the board, the commissioner accompanied him to his residence and agreed to settle the matter with him for the sum of seventy-five dollars. This proof was made by oral testimony of what took place, con-

p. 534

sisting of conversations between the plaintiff and members of the board; between members of the board themselves; between members of the board and the commissioner, and between the plaintiff and the commissioner; and also of a letter written by the commissioner to the plaintiff after the alleged settlement.

At the close of the plaintiff’s testimony a motion was made for nonsuit, which was denied, and the motion was renewed and denied at the close of all the evidence. The jury rendered a verdict for the plaintiff for seventy-five dollars, the amount of the alleged settlement.

Linson & Van Buren, for app’lt; John E. Hardenbergh, for resp’t.

Without passing upon the position taken by'the appellant that there was no sufficient evidence of negligence given upon the trial, on the part of the highway commissioner, to sustain the judgment, we are of the opinion that a new trial will be necessary because of the reception of improper evidence by the justice.

He allowed the plaintiff to show conversations and negotiations had with the individual members of the town board and with Enderly, the highway commissioner; and also received a letter of Enderly’s written to the plaintiff. All this evidence was properly objected to by the defendant.

The plaintiff might have shown the presentation of his claim to the defendant’s board of auditors, and that it was not allowed. But it was not competent to prove his conversation with Enderly, the highway commissioner, or with the members of the town board. Certainly the objection to the evidence of the conversation between plaintiff and Enderly prior to the presentation of the plaintiff’s claim to the town board should have been sustained and the testimony so objected to may have influenced the result.

The judgment should be reversed, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.