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and 114 New York State Reporter when stepped upon, would justify a finding that this duty was not performed, and that it constituted a trap dangerous to those passing over the deck. Patterson v. Hochster, 38 App. Div. 398,56 N. Y. Supp. 467; Cheevers v. Steamship Co., 26 Misc. Rep. 193, 55 N. Y. Supp. 445; Dunn v. Durant, 9 Daly, 389; Lentino v. Iron Ore Co., 71 App. Div. 466, 75 N. Y. Supp. 755; Bartnik v. Railroad Co., 36 App. Div. 246, 55 N. Y. Supp. 266. The relation of master and servant did not exist between the decedent and the owner of the lighter, and the former did not assume the risk of injuries from the negligence of the employé of the latter. Shear. & R. Neg., supra; Thompson, Comm. Neg. § 985; Wright_v. Railway Co., supra; Murray v. Dwight, 161 N. Y. 301, 55 N. E. 901, 48 L. R. A. 673; Railway Co. v. Bolton, supra. Moreover, it would seem that the negligence was not the negligence of Hammond's employés, but that of himself in failing to exercise reasonable care in the construction or inspection and repair of this manhole and the grating. The decedent was not informed of the defective condition of the grating, and the same was not open and obvious; therefore Hammond would not be relieved of liability, even if the decedent were to be regarded as constructively in his employ.

I am of opinion, therefore, that the judgment should be affirmed as to the Hamburg-American Packet Company, with costs, but reversed, and a new trial granted, as to the respondent Hammond, with costs to appellant to abide the event.

O'BRIEN, J., concurs.

McLAUGHLIN, J. (dissenting). I concur with Mr. Justice LAUGHLIN in so far as he holds that the judgment dismissing the complaint against the steamship company should be affirmed, but I dissent from his conclusion that the judgment should be reversed and a new trial ordered as to the defendant Hammond. The facts, so far as they are material to him, are as follows: He was the owner of the lighter Excelsior, on which was a cargo of rosin, which was to be delivered alongside of a ship belonging to the defendant steamship company. The lighter had a crew consisting of two men, employés of Hammond, whose duty it was to bring the lighter alongside of the ship and make it fast. On the 8th of May, 1900, these employés were in the performance of that duty, and the uncontradicted evidence is to the effect that they were able to perform it without any assistance, and that they made no request for assistance from any one. Notwithstanding this fact, the intestate and other employés of the steamship company were directed by their foreman to go aboard the lighter, and assist in placing her alongside the ship. This was no part of their duty, which consisted in “slinging the barrels” of rosin from the lighter, after it had been made fast, onto the ship. In pursuance of this direction the intestate jumped onto the barrels of rosin which were piled on the deck of the lighter, and then jumped from there to the deck, and, as he did so, he stepped upon an iron grating covering a manhole in the deck, which turned, and he came astride of it, and was so injured that he died shortly thereafter. There was no dispute between the parties as to the construction or condition of the manhole. It was a round opening in the deck, used for ventilating purposes, into which was set an iron rim about 16 inches in diameter, having an iron flange or edge upon its lower part, of something like one-half an inch in width. In the rim was set an iron grating, which rested on the flange. It did not fit tightly. There was a play of about one-eighth of an inch all around between the outside edge of the grating and the inside edge of the flange. The grating was not fastened in any way to the rim, but could be lifted out as occasion required. There was also provided an outer iron cover, which was not in place when the accident occurred, but just when or by whom it was removed did not appear. There was no evidence to the effect that either the manhole, rim, grating, or cover were faulty in construction or that they were different from those used for a like purpose on similar boats. Nor was there any evidence that at the time the accident occurred any part of them was broken or out of repair, or prior to the time the intestate was injured that anything had occurred to indicate that an accident similar to the one which befell the intestate could possibly happen.

This being the situation at the close of plaintiff's case, I am unable to see how the trial court could do otherwise than dismiss the complaint as to the defendant Hammond.

First. The defendant Hammond owed the intestate no duty. He was not in the employ of Hammond, but of the steamship company, and when he went aboard the lighter he did so, not at the request of Hammond, but solely at the suggestion or by the direction of his employer. He was on the lighter, at most, by the implied sufferance or license of Hammond, and not by his invitation, either express or implied. The lighter, as already said, was manned with sufficient men to place her alongside, preparatory to the rosin being taken from her and put on the ship. No assistance was necessary for that purpose, nor was any requested. Nor do I think there was any evidence to go to the jury that it was customary, under such circum

ances, for the employés of the steamship company to go on board the lighters when they were being brought alongside. The defendant Hammond, therefore, was under no obligation whatever to protect one against injury who might voluntarily go upon the boat out of curiosity, or to further his own or his master's business. Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718; Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594.

Second. But if it be held that Hammond owed the plaintiff's intestate a duty to provide him a reasonably safe place to do his work, when directed to go onto the lighter by the steamship company, even then it seems to me the plaintiff failed to establish a cause of action. To establish liability on the part of Hammond, the plaintiff was bound to prove that the manhole, rim, grating, or cover was, in the first instance, improperly constructed, or else had become defective and out of repair, and that the defendant had notice of such defects, or by the exercise of reasonable care could have discovered and 114 New York State Reporter them. This proposition is elementary, and the citation of authorities is unnecessary. Here there was absolutely no evidence which would have justified a finding that there was any act of omission or commission on the part of Hammond in this respect. It is true the suggestion is made that the grating did not fit tightly in the rim, that there was a space of about one-eighth of an inch all around it, and that this may have been the cause of its tipping; but it seems clear this could not have been the cause if the grating was in place when the intestate jumped, and the flange was one-half an inch wide. Nor is it apparent how the outer covering could have had any effect upon its tipping, and, if it could, I do not see how that could be held as a negligent act so far as Hammond is concerned, because it appears that only a short time before the accident occurred this covering was in place, and when it was removed, or by whom, does not appear. The truth is, no one knows, so far as this record shows, just how the accident occurred, or what was the cause of it; and to have sent the case to the jury in the condition in which the evidence was at the close of the trial would have been simply to permit them to guess and speculate upon that subject, and possibly to infer from the fact that an accident had occurred that it was due to some omission of duty on the part of Hammond. This would have been insufficient to have sustained a verdict.

For these reasons I think the judgment should also be affirmed as to the defendant Hammond.

VAN BRUNT, P. J., and PATTERSON, J., concur.

178 App. Div. 432.)

PEOPLE ex rel. REGAN V. YORK et al., Police Com'rs. (Supreme Court, Appellate Division, First Department. January 23, 1903.) 1. CERTIORARI-POLICE COMMISSIONER8—REVIEW OF PROCEEDINGS-RETURN

SUBSEQUENT RETURN.

Code Civ. Proc. $ 2135, relative to certiorari to review proceedings of inferior tribunals, enacts that, if a return is defective, the court may direct a further return; and section 2136 provides that certiorari may issue to, and a return may be made by, an officer whose term of office has expired. Greater New York Charter, $ 1546, requires that in every department or board there shall be kept a record of all its transactions. Section 1543 requires that, in every case of removal of an employé of the city, the grounds therefor shall be entered on the records, and a statement showing the reasons filed. Section 300 provides that the police board shall make rules for the regulation of the department, and that no member of the force shall be removed without written charges, heard and investigated. Rule 28, par. “m," provides that testimony shall be taken on oath, and reduced to writing. Greater New York Charter, $ 298, provides that a certified copy of the minutes or of any order or resolution of the police board shall be competent evidence. On certiorari to review the action of the board of police commissioners in removing relator from his position of patrolman, the return showed that at the close of the evidence the commissioners made an official record in writing, as required, reciting that the removal was made on the evidence, and the return did not show that the record of the relator was considered. Held, that as a consideration of relator's record on the question of his guilt would have rendered the removal proceedings invalid,

and as such consideration was not shown by the record of the commissioners made pursuant to law, it could not be shown by an amended return made by three of them a year and a half later, and when their term of office had expired.

Appeal from special term, New York county.

Certiorari by the people, on the relation of James Regan, against Bernard J. York and others, police commissioners of the city of New York, to review their action in removing relator from the position of patrolman. From a judgment dismissing the writ, relator appeals. Affirmed.

Hearing on a writ of certiorari to review the action of the police commissioners in removing the relator from the position of patrolman, and the return thereto. The relator was appointed patrolman on probation on the 2d day of April, 1889, and the appointment was made permanent on the 4th day of May, 1889. On the 19th day of September of the same year charges against the relator were preferred by an inspector, and approved and filed on the 22d of the same month. He was charged with conduct unbecoming an officer, and the specification of the charges shows an illegal arrest and an unwarranted assault upon the prisoner on the 1st day of June, 1899. The charges and specifications were duly served, and the trial of the relator thereon was begun on the 12th day of October, 1899. The relator was dismissed on the 2d day of April, 1900, after the conclusion of the hearing on said charges. The petition for the writ was filed on the 9th day of April, 1900. The only error assigned in the petition is that there was no legal or kompetent evidence adduced to prove the guilt of the relator. The writ was allowed on the 16th day of April, 1900, and a return thereto was made in behalf of the commissioners by the president of the board on the 12th day of September, 1900. Annexed to the return in obedience to the writ was a copy of the charges (Schedule A); a copy of the notice thereof (Schedule B); a copy of the proceedings upon the trial, including the evidence, and also a statement of the relator's record while on the force (Schedule C); a copy of the order or record of removal (Schedule D); and a copy of the rules of the department relating to the duties of the members of the force, and to the hearing of charges against them (Schedule E). The return, after reciting the proceedings relating to the trial, contains the statement "that at the termination of the said trial or hearing, the said charges and specifications, the proceedings, and the relator's record was duly considered by your respondents at a regular meeting of the board of police held on the 2d day of April, 1900; and, after due consideration thereof, your respondents determined, after the exercise of their best judgment and discretion, that the relator was guilty as charged, and they thereupon passed a resolution (a copy whereof is hereto annexed, and made a part hereof, and marked 'Schedule D') declaring, ordering, and adjudging that the said charges were true, and dismissing the relator from the police force of the police department of the city of New York." The relator, without taking any action to compel a further return, or bringing the proceeding to a hearing, for a year and a half, subsequently made an application at special term to compel the filing of a further return, setting forth "fully and clearly” the fact whether the relator's previous record was or was not considered in determining the question of his guilt, or merely in determining the degree of punishment. In the meantime the commissioners had all gone out of office. The motion was opposed by the corporation counsel, but it was granted. Three of the ex-commissioners filed what purported to be an amended return, stating that they had considered the relator's record both on the question of his guilt and on the question of punishment. Another purported return was filed by the expresident of the board, who, for the board, had filed the original return, in which he states that the record of the relator was only considered in determining the punishment, and that it was not intended by the original return to certify that it was considered on the question of guilt; that it was the invariable custom, in cases of dismissal from the force, to submit the and 114 New York State Reporter testimony to him after the examination, as president of the board. for the purpose of determining its sufficiency to justify and sustain a conviction; and that he never permitted himself to be influenced in such determination by the record of the accused.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Louis J. Grant, for appellant.
Terence Farley, for respondents.

*

LAUGHLIN, J. The order of removal recites the proceedings on the trial, making no reference to the record of the relator; that the trial was before one of the commissioners, "and the proofs and allegations in relation to said charges have been duly taken and recorded as required by law, and the said rules and regulations, and the determination of said charges being referred to the police board, and the same being now before the police board,

the same having been referred to the board for decision, upon due consideration the board do adjudge the said patrolman, James Regan, to be guilty of the charge, and do convict him thereof; and upon such conviction the board do adjudge and determine that he, the said patrolman, James Regan, he dismissed from the police force of the police department of the city of New York.” The original return is in the same form as that in People v. Roosevelt, 168 N. Y. 488, 61 N. E. 783, where it was held that the return was ambiguous, but when supplemented by the order of removal, which was similar to the order in the case at bar, it was clear that the relator's record was considered only in determining the punishment to be inflicted. The rule stated in former decisions (People v. Same, 2 App. Div. 498, 37 N. Y. Supp. 1083; People v. French, 119 N. Y. 505, 23 N. E. 1061), was there reiterated, however,-that the record of the relator was incompetent on the question of guilt, but might be considered on the question of punishment. In a proper case an amended or further return is authorized. Code Civ. Proc. $$ 2135, 2136; People v. Roosevelt, 2 App. Div. 498, 37 N. Y. Supp. 1083. But in the case at bar, if the amended return were considered, not only would the commissioners be permitted to impeach the record of their own official proceedings, but this very long after all official responsibility has terminated, and they have gone out of office and become private citizens. Section 1546 of the Greater New York charter (chapter 378, Laws 1897) requires that "in every department or board there shall be kept a record of all its transactions”; and section 1543 of the charter requires that "in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board. In case of removal a statement showing the reason therefor shall be filed in the department." Section 300 of the charter authorizes the police commissioners “to adopt rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against any member or members of the said police board, but no member or members of the police force except as otherwise provided in this chapter shall be fined, reprimanded, removed, suspended or dismissed

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