Kelly v. Doody
| Decision Date | 26 November 1889 |
| Citation | 116 N.Y. 575,22 N.E. 1084 |
| Parties | KELLY v. DOODY. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
This action was brought in the city court of Brooklyn to recover damages which plaintiff alleges she sustained through the negligence of the defendant's servants in digging a trench in the sidewalk on Seventeenth street, in the city of Brooklyn, and leaving the same without sufficient guard or warning, by reason of which the plaintiff, on the 5th day of April, 1885, and without any fault or negligence upon her part, in passing along the sidewalk, fell into the pit, and was injured. The answer was a denial, and allegations that the injury was due to her fault and negligence. Plaintiff recovered a verdict for $5,000, and the defendant appeals from the judgment of the general term of that court, affirming a judgment in favor of the plaintiff upon the verdict, and from an order denying a motion for a new trial. The evidence upon the trial showed this state of facts: That one Bush built a block consisting of five tenements, and had contracted with one Warren to plumb the tenements, and connect them with the water-main in the street; that he had finished the plumbing and connections with three of the tenements under the contract, and was proceeding, with some degree of dilatoriness, with the plumbing, and making the water connections with the other two; that all that remained to be done to perform the entire contract was to make the connection between two of the houses and the main; that the cost of these connections would be about $50; that the plumber had been paid but about one-half of the contract price; and that Mr. Bush had made default in making payments in proportion to the progress of the work, (the contract price was $625, and Bush had paid some $325,) and was embarrassed, and had mortgaged the block to secure his creditors, or some of them; that Mr. Bush was also owing defendant's firm for some of the materials in the block; that the tenements, or all save one, were leased by Bush or his agent; that Bush had consented that the collector of the rents of the house into which the water was yet to be conducted might pay it over to defendant's firm, upon the debt Bush owed them; that the tenant of that house complained that the water was not conducted into it, and talked of leaving the house for that reason; that Bush's collector communicated this to the defendant, and that the defendant replied he would see the owner of the block or the contractor upon the matter, and see if it could not be remedied; that the defendant spoke to the contractor, and inquired why he did not make the connection; that the excuse of the contractor was that his failure to do so was for want of laborers to dig the channel to receive the water-pipe; that defendant asked him if he would do it if he would find a laborer for him to dig the trench, and the contractor promised he would then make the connection; that shortly after a laborer, Thomas Donovan, applied to defendant to drive the team of defendant's firm in its business, or to do some labor for the firm, and defendant informed him that the firm did not want his labor at the present time, but he thought he could have a job at digging, if he went to the contractor; that he went to the contractor, and the contractor sent one of his employes with Donovan, to show where and how to dig the trench; that Donovan did the digging, and afterwards reported it to the contractor, who sent him back to cover the hole he had dug; that Donovan claimed of the contractor for one and a half days' labor in so doing; that the contractor did not deny his liability to pay, but did not, until after the first trial, pay him, and defendant never paid him for the digging; that, some little time after doing the digging, Donovan went to work for defendant's firm, and was so employed when the first trial took place, but not when the last trial was had; that the contractor, Warren, applied to the authorities for a permit to tap and connect the block of tenements with the water-main in the street; that such permit is necessary to do such work; that in May following the contractor reopened the hole, and connected the water-pipes. Mr. Bush spoke to Warren about finishing up in the summer after the accident, when he finally finished it up. The evidence upon which the liability of the defendant depends was given by the owner of the premises, the contractor for the plumbing, the laborer who made the excavation for the service-pipe, and the defendant.
W. W. MacFarland, for appellant.
Josiah T. Marean, for respondent.
POTTER, J., ( after stating the facts as above.)
From the foregoing statement of the evidence, it will be seen that the plaintiff sought to establish a liability upon the part of the defendant for the damages she had sustained by disregarding the real and ordinary relations between the parties to this transaction, and substituting others, somewhat inconsistent. Bush had erected, and was the owner of, the block, embracing five houses or tenements, and, as such, had made a contract with one Warren to plumb and connect the same with the water-main in the street, to furnish the same with water; and Warren had obtained the proper permit of the authorities for that purpose, and which, I apprehend, is usually granted to plumbers. The plumber had plumbed the houses, and connected all of them with the main, except two, and had been paid upon the contract about one-half of the price agreed upon for the entire work. The defendant was a creditor of the owner, and, by consent of the owner, was receiving the rent of the tenements, or of some of them, to apply upon the debt due his firm from the owner. The consent to receive and apply the rent was verbal, and for no specified period of time. One Donovan dug the trench for the pipe, to connect the main pipe into one of the houses. The excavation was not sufficiently covered during the interval of time, some 10 days, between the digging and the filling of it; and during that period the plaintiff,...
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