tees, it would have a cause of action against them. The defendants were public officers. They acted under a misapprehension of their powers, without intentionally doing a wrong, and they should not be held liable to refund the money if this section can be consistently construed so as to protect them. And, having come to the conclusion that the act of the defendants complained of was not such an appropriation of money as is inhibited by section 11, it follows that the complaint of the plaintiff should be dismissed, with costs. So ordered.

(15 Daly, 95)

SHULTZ . THIRD AVE. R. Co.

(Common Pleas of New York City and County, General Term. December 3, 1888.) TRIAL-VERdict-SuffICIENCY OF EVIDENCE.

Plaintiff's testimony that his injuries were caused by the car suddenly starting while he was alighting from it, was uncorroborated, while that of the conductor, that plaintiff fell while stepping from the car while it was in motion, was corroborated by his own report and by an affidavit of plaintiff, both made on the day of the accident. Plaintiff alleged that when he made the affidavit he was so dazed that he did not know what he was doing, but was contradicted by that of three witnesses who were present, by the appearance of his signature to the affidavit, and by the erasure from the affidavit, by his direction, of the word "jumped," and the insertion of "stepped." Held, that a verdict for plaintiff was contrary to the weight of evidence.

Appeal from trial term; J. F DALY, Judge.

Action by Simon Shultz against the Third Avenue Railroad Company to 1ecover for personal injuries. Defendant appeals from a judgment for plaintiff, and from order denying motion to set aside verdict and grant a new trial. Solomon, Kantrowitz & Esberg, for appellant. Hoadly, Lauterbach & Johnson, (Wm. N. Cohen, of counsel,) for respondent.

LARREMORE, C. J. This action was brought for the recovery of damages for personal injuries sustained by the plaintiff through the alleged negligence of the employes of defendant. A judgment was recovered and entered for $631.30, from which this appeal is taken.

*

Plaintiff's account of the manner in which the accident happened, given on the trial, is as follows: "I was seated in a car. * * I got up to tell the conductor where I wanted to get off. I went to the rear door, and opened the door, and told the conductor to be kind enough to stop at Spring street. He said, 'All right, sir.' When I got to Spring street, I told the conductor please to stop there, and he did stop the car at Spring street, perhaps a few feet below the crossing. I saw the conductor pull the bell when he rung for the car to stop. I stepped to the door, and the conductor pulled the strap. When the car came to a stand-still, I took hold of the baluster or iron rail, and went to step off. I had one foot on the step, and the right foot I had already in an elevated position to step down, but the car gave all of a sudden a jerk, and I was thrown to the ground." If this statement were true, it would conclusively establish negligence on the part of the defendant, and absolute freedom from contributory negligence on the part of plaintiff. But, it appears that immediately after the accident the plaintiff took a car on defendant's road going up town, and proceeded to the defendant's depot on Third avenue. While there it is undisputed that he signed and verified an affidavit, from which the following is an extract: "I boarded car number 173 at 77th street and Third avenue. When at or near Prince street and the Bowery, I got up out of my seat in the car, walked out to the rear platform, and told the conductor I wanted to get off at Spring street. At Spring street I told the conductor a second time to stop the car. The conductor took no notice of me, and I stepped from the car while it was in motion." Of course, if this version were accepted, it would be fatal to plaintiff's recovery, as the court would be obliged to say as a matter of law that contributory negligence existed. There is no corroboration of

plaintiff's testimony at the trial as to the facts of the accident. On the other hand, there are many corroborations of the strongest character of the statements made by him in his affidavit, upon the day when the mishap occurred. To begin with, the affidavit itself is entitled to great weight, and for other reasons besides the circumstance that its execution was attended with the solemnity of an oath. Plaintiff claims that the reason why he was induced to make such a statement was that he was so dazed, and his nervous system so upset by his fall, that he had no knowledge of what the paper contained, or of what he was doing. But the signature to the affidavit, a photographed copy of which is in the case, shows no sign of physical weakness or nervous trepidation. It was evidently made with a steady hand, and with considerable care, although there are no indications of painful effort. It is in all respects a better piece of penmanship than the signature made on the day of the trial for comparison, while in the formation of letters and in all essential particulars the two signatures are the sign manual of the same person. In the original affidavit the word "stepped" is written over the word "jumped," which was erased. Mr. Brolles, a notary public, who drew the affidavit, testifies in explanation of this that, when the affidavit was first prepared, it read; "The conductor took no notice of me, and I jumped from the car while it was in motion;" that the plaintiff read the affidavit, and objected to the word "jumped;" and that it was at plaintiff's suggestion that the word "stepped" was substituted. This circumstance tends strongly to show that plaintiff was conscious of what he was doing when he signed and swore to such paper. There is also the direct evidence of a number of witnesses, being officers and employes of the defendant, and also that of a physician who attended the plaintiff at the time when he made the affidavit, to the effect that he was then in full possession of his faculties. There is even a further corroboration of the defense offered. It appears that the conductor of the car from which the plaintiff fell, upon the day of the accident made the following report in writing: "NEW YORK, Dec. 1, 1885. To the President of the Third-Avenue Railroad Company: On my 8:44 trip from Harlem, a passenger, in getting off, did not wait for the car to stop, and as he stepped off I pulled the bell. The car was going very easy. He fell, but was not hurt. He got up and walked away, threatening to report me." The conductor also testified on his oral examination that the plaintiff, upon rising after his fall, shook his cane at him, (the conductor,) and manifested great indignation and anger. All the evidence that has been offered on behalf of the defense tends to show that plaintiff's real purpose in going to the company's office was to report the conductor for some real or fancied wrong, thereby corroborating the conductor's version of the affair. In his affidavit made that day, plaintiff complains of the conductor, alleging that, although he told him to stop the car, the conductor took no notice of him. Even at the trial plaintiff testified that the conductor was immediately discharged after his complaint. As the trial judge remarked in his charge to the jury: "What was the conductor discharged for? What complaint did he [the plaintiff] make? If his statement is correct, he made no complaint against the conductor, because the conductor stopped the car, did his duty, and brought it to a standstill; and it was the fault of some one besides him that it went on. Yet he says the conductor was discharged on the spot." It thus abundantly appears that plaintiff's testimony on the trial (and upon that alone this verdict rests) is contradicted by his own statement under oath, made immediately after the accident, and is also inconsistent with a significant statement made by him in giving such testimony. On the other hand, the evidence of a number of witnesses examined by defendant agrees in all material points, and is, moreover, corroborated by all the documents in

the case.

Our duty in the premises is clear. It is impossible to read the charge of the learned judge who tried this case without perceiving that his personal

impression of the evidence was strongly adverse to plaintiff's claim. He denied the motion to set aside the verdict because contrary to the weight of evidence, but in all likelihood he remembered in so doing that such application could be addressed to the general term on the appeal, and preferred to remit the same to us for determination. This is not merely an instance of the oral testimony of one man being pitted against the unanimous oral declaration of a large number of adverse witnesses. It is, in addition to this, a case where the plaintiff, for the purpose of making out a state of facts that would prevent a dismissal of the complaint, directly denies prior written declarations of his own under oath, and tells a story so inconsistent with his former actions that the conclusion recorded by the jury is absurd. Although in a discussion of this nature each case must be judged by its peculiar facts, and precedents have comparatively little value, yet in many essential respects the case at bar is analogous to Molloy v. Railway Co., 10 Daly, 453, and McCarthy v Railway Co., Id. 540. The judgment should be reversed, for the reason that the verdict is against the weight of evidence, and a new trial is ordered, with costs to abide the event.

VAN HOESEN, J., concurs.

(15 Daly, 102)

WINTERS . MAYOR, ETC., OF NEW YORK.

(Common Pleas of New York City and County, General Term. December 3, 1888.) MUNICIPAL CORPORATIONS-CONTROL OF STREETS-OBSTRUCTION IN BUILDING.

While plaintiff was walking over a plank laid from a temporary sidewalk in front of a building in the course of erection to the street, the plank turned, and threw him against an iron spike which had been used in connection with a derrick, but was not in use on that day. Held that, as the occupation of the street in this manner was authorized by law, and as the city had no control over the work, it was not liable for the injury.

Appeal from trial term; HENRY W. BOOKSTAVER, Judge.

Action by Michael Winters against the mayor, aldermen, and commonalty of the city of New York. In August, 1883, three brick houses were being erected on the south side of Eighty-Sixth street in the city of New York. Gessler was the builder, and Wise contractor. The plaintiff had carted brick to these buildings, and on August 18, 1883, went to the office therein to get his usual receipt of delivery. During the erection of the buildings an elevated and wooden temporary sidewalk was constructed, from which to the street a plank was placed for the use of persons having business with the buildings aforesaid. When the plaintiff walked over this plank he fell, striking his right knee on the top of an iron spike which stood in the street, causing a fracture thereof. The spike in question had been used to fasten guys for a derrick; had been there for several weeks, but was not in use on the day of the accident, Upon the trial, after hearing the evidence, the complaint was dismissed on the ground of failure of affirmative proof of the defendant's negligence. From the judgment of the court as above stated the plaintiff appeals.

Alfred B. Cruikshank, for appellant. Henry R. Beekman, (Albert E. Henschel and Thos. P. Wickes, of counsel,) for respondent.

LARREMORE, C. J., (after stating the facts.) That the defendant owed a duty to the public to keep its streets in safe and proper repair is unquestioned, and notice of any defect or obstruction therein might lawfully be presumed from lapse of time. But the case before us presents a somewhat different phase of the law holding the defendant to answer for a legal responsibility. The occupation of the street and sidewalk by a person engaged in the erection of a building is clearly within the authority of the law. Rehberg v. Mayor, 91 N. Y. 137. It appears from the evidence that the spike which caused the

injury, although not in use at the time of the accident, was necessary for the completion of the buildings in question. The city gave no authority for the occupation and use of the street or sidewalk. That, as above stated, was conferred by the law. Gorham v. Trustees, 59 N. Y. 660. It was strenuously insisted upon the argument that where two causes of injury contributed to an accident, either cause, proximate or remote, would afford a ground of recovery. The authorities cited to sustain this proposition are not applicable to the case under review The case of Worster v. Railroad Co., 50 N. Y. 203, decided that a railroad company was bound to lay its tracks in a proper and secure manner, and was liable for any neglect resulting therefrom. Mullen v. St. John, 57 N. Y. 567, holds that the owner of a house adjoining a street must keep the same in proper condition so that it shall not fall; and, if it does, negligence will be presumed from any accident occurring thereby, and the burden of proof is cast upon such owner to absolve him from liability. Hume v. Mayor, etc., 74 N. Y 264, was a case within my personal consideration in its first instance, and was affirmed by the court of appeals mainly upon the ground that the city must be presumed to have had constructive notice of the defective condition of the wooden shed or awning that caused the injury. Ring v. City of Cohoes, 77 N. Y. 83, makes no change in the principle of law above referred to. Rehberg v. Mayor, supra, holds that the neglect of a public officer, (to-wit, a policeman,) or his mistake in not reporting as to an obstruction of bricks piled in the street, would not save the city from liability, and that the offer to prove the legal regulations as to the height of a pile of brick in front of a building in process of erection, which was rejected, was error. In the case of Goodfellow v. Mayor, etc., 100 N. Y. 15, 2 N. E. Rep. 462, a nonsuit was granted, which the court held to be error, thereby deciding that the act of a policeman whose duty it was to inspect the cross-walks in his precinct, and who had examined and failed to report any defect in the same, did not discharge the municipality from liability if such defect was subsequently shown. The city had no control over the work to be done in the erection of the buildings, and the person doing the same is chargeable with any alleged negligence for improperly performing his duty. Pack v. Mayor, etc., 8 N. Y. 222; Kelly v. Mayor, etc., 11 N. Y. 432. The whole range of authority establishing the liability of municipal corporations seems to point to the correctness of the conclusion reached by the trial judge and leads to an affirmance of the judgment appealed from.

VAN HOESEN, J., (concurring.) Though I shall vote with Chief Justice LARREMORE in favor of affirming the judgment, my reasons are not precisely the same as his. The city was upon the testimony undoubtedly responsible for the presence of the spike in the highway; for it had been there for some days, if not for some weeks. It had, therefore, constructive notice, at the least, that the spike was in the street. It is in evidence that it was placed there by the builders to facilitate them in carrying materials for building to the upper part of the houses that were in the course of construction. It was used to fasten guy-ropes that appertained to the hoisting-machine. Now, instead of assuming that the spike was in the street in violation of law and with. out leave of the city authorities, I think that, in the absence of all testimony, we ought to assume that the spike was there by permission of the city; for the city is empowered to permit the placing of an obstruction in the street when the promotion of building makes such obstruction necessary. Subdivision 4 of section 86 of the consolidation act confers upon the common council the power to permit the temporary obstruction of a street "during the erection or repair of a building on a lot opposite the same." Here it is shown that the spike was in the street opposite a building that was going up. The mere fact that an obstruction exists under such circumstances does not create any liability on the part of the city. It may lawfully obstruct the street oppo

site a house that is building for the purpose of facilitating the mechanics. But the obstruction must not be obviously dangerous. If it be so dangerous that men of ordinary prudence would condemn its use, permission for it should be absolutely refused by the city authorities; but if it be not, when used with ordinary care, hazardous to the public lawfully using the street for street purposes, the city ought not to be held liable if an injury results accidentally from its presence in the highway. Merely to prove, therefore, that the spike was in the street is not enough to warrant a verdict against the city when it is also shown by the plaintiff that it was in use opposite to a building then in progress. Some proof was necessary that it was inherently dangerous, or that it was so misplaced or so concealed, or that its situation with respect to its surroundings was such, that men of common prudence could see that it was likely to cause injury. The testimony adduced by the plaintiff showed that spikes are in common use for holding guy-ropes attached to derricks, but that wooden posts are also used. There is nothing to warrant us in saying that wooden posts are safer than spikes, (for in contingencies that can be conceived of they would be far less safe,) or that the use of spikes is not compatible with the exercise of ordinary care. It appears, then, that the case is barren of evidence that the presence of the spike in the street was an unauthorized obstruction, or that it was an obstruction that became unlawful because obviously dangerous; and hence a finding of negligence against the city would have been without evidence to support it. It will be seen that I have made no point of the fact that when the plaintiff was injured he was not using the street for street purposes, but was coming down a plank placed athwart the sidewalk for the convenience of workmen who had to carry some of the materials from the carriage-way of the street to the doorway of the house. The plank turned with him, and threw him down, and in his fall he collided with the spike that stood in the carriage-way I have treated the case as if he were using the street in the ordinary way. For the reason that the city may authorize an obstruction necessary for the convenience of building operations, and that there is no proof that this obstruction was apparently dangerous to those using the street in the ordinary way, I think the motion to dismiss the complaint was properly granted.

KIMBALL . HEWITT, Mayor, et al.

(Common Pleas of New York City and County, Special Term. August 10, 1888.) 1. MUNICIPAL CORPORATIONS-CONTRACTS-WITHDRAWING BID.

Under a statute requiring municipal contracts to be let to the lowest bidder, and forfeiting to the city the certified check deposited with such bid in case the bidder refuses to sign the contract within five days, the city officers have no right to allow a bidder to withdraw his bid, even before the bids are opened. 2. SAME INJUNCTION-ACTION BY TAX-PAYER-GOOD Faith.

When it appears that injunction proceedings by a tax-payer to restrain the allowance of a municipal contract were begun by one person and continued by another, whose name was inserted in the complaint after it had been completed, and who did not verify it until several days after the summons was issued, and that affidavits in support of the injunction were made by the vice-president of a corporation interested in the letting of the contract, the court will, in its discretion, dissolve a preliminary injunction as not asked for in good faith, though the contract was not awarded in accordance with law.

Motion to continue pendente lite an injunction restraining the defendants the mayor, the comptroller, and the commissioner of public works, individually or as a board, constituting the gas commission, under the provisions of Laws 1882, c. 410, § 69, from executing any contracts for furnishing the city of New York with electric lights with certain named electric light companies, under an award made by defendants pursuant to bids for the contract. Before the bids were opened, the request of the Electric Construction Company's counsel to be allowed to withdraw its bid was granted, and this action was