Mayor, Aldermen & Commonalty v. Brady

When first before this court, there was a reversal of the judgment in favor of the plaintiff, on the ground that it had failed to show that, as between the city and the defendants, the latter were primarily liable for the wrongful act which occasioned Cruikshank’s injuries, and which supported his recovery. 70 Hun, 250 ; 54 St. Rep. 1 . The record then before the court showed that the plaintiff, to make out its cause of action, had put in evidence the contract between the city and Nutt & Kearns, contractors; the bond given for the faithful performance thereof, on which these defendants were sureties; the commencement of an action against the city by Cruikshank, claiming damages for injuries occasioned by his falling over a pipe which had been negligently placed across the sidewalk by Nutt & Kearns, while at work under their contract with the city; a written notice from the corporation counsel to Nutt & Kearns and their sureties, these defendants, stating the pendency of the action and the purpose of it, and asking that they defend_ the action at their own expense; the judgment roll in the action, and proof of payment of the judgment by the city, together with the amount of the expense incurred by the city in defending the action. The fourth subdivision of the complaint in the Cruikshank action, in its statement of facts, set' forth that Nutt & Kearns negligently left a pipe across the sidewalk, over

The judgment roll, in connection with such proof and the notice given to the contractor and sureties to come in and defend that action, established (1) that Cruikshank was injured by falling over the pipe ; (2) that leaving the pipe in the situation in which it was, and without guard or protection, constituted negligence ; (3) that Cruikshank was free from contributory negligence; and (4) that he was damaged in the amount for which he had recovery. On the question of primary liability, the plaintiff proved that the -pipe was put in the position in which it was at the time of the accident by the contractors, Nutt & Kearns. As this evidence was not disputed, there only remained the question whether the presence of the city’s inspector at the time the pipe was laid, by virtue of his authority under the contract, made the act of laying the pipe in the manner in which it has done the city’s act. The defendant’s counsel insisted otherwise, and claimed the right toi try anew the question whether the act of which Cruikshank had complained was wrongful. The trial court rightly ruled against him. Mayor, etc., of Troy v. Troy & L. R. Co., 49 N. Y. 657 ; City of Rochester v. Montgomery, 72 N. Y. 67 ; Heiser v. Hatch, 86 N. Y. 614 ; Village of Pori Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 550 ; City of Rochester v. Campbell, 123 N. Y. 408 ; 34 St. Rep. 77 .

We shall now inquire what effect, if any, the presence of the inspector at the time the pipe was laid, and his assent to its laying, had upon the question of primary liability as between the city and Nutt & Kearns. True, the evidence does not show that he was presented and assented, but evidence tending in that direction was offered and excluded; and, for convenience, we shall

There are other provisions affecting the duty of the inspector and engineer, but they do not confer upon such employes the right to authorize or sanction the doing of a negligent or improper act by the contractors while engaged in the performance of their contract. As stated by Judge Folg-er in City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 480 : “The clause is, in effect, no more than a reservation to the plaintiff of a right of supervision of the work as it goes on, so that it shall have concurrent check upon a faulty or deficient performance by the defendant.”

But, assuming that the inspector or engineer could so far represent the city as to authorize the laying of the pipe across the walk, still the contractors were bound to guard it, and do all things needful to save the public from injury. If the right to lay the pipe was acquired by the action of the inspector and engineer, it carried with it to the contractors the obligation to so protect and guard it as to warn passers-by, and thus save them from injury. “Consent by a municipal corporation to a person to do a lawful act merely permits it to be done in a careful, prudent, and lawful manner; and when it is performed in any other manner, and an injury to third persons ensues, the author of the injury is liable therefor.” Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 557 . Had the contractors performed their full duty by so guarding the pipe as to warn travelers of its presenpe on the walk, there could have been no recovery in the action of Cruikshank against the city.

The judgment should be affirmed, with costs.

All concur.