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“paupers, speak up, if you have any grievances to make known;" “I (said defendant meaning) know he (said plaintiff meaning) starved the paupers;" “I (said defendant meaning) will follow Green to the last.”
And the plaintiff avers that, by the words aforesaid, the defendant insinuated and meant to be understood as charging the plaintiff with the crime of manslaughter, in causing the death of the said Rebecca Southard by his culpable negligence and misconduct, and that plaintiff was guilty of neglect of duty in his employment as such keeper, and was so understood by those persons in whose presence and hearing the said words were uttered. The plaintiff also avers that, by means of the premises, his mind and health have been so impaired as to prevent him from attending to his affairs as he otherwise would, and he has also been subject to expense for medical aid.
Wherefore the plaintiff demands that compensation in damages for the said injuries may be made to him in the amount of $5,000.
(11.) OTHER ACTIONS FOR WRONGS, INCLUDING INJURIES TO
RELATIVE RIGHTS, PROPERTY AND PERSON.
For damages occasioned by the falling in of a privy rendered
insecure by defendant's negligence, the plaintiff being a servant in his employ.
SUPREME COURT - COUNTY OF ALBANY.
Elizabeth Ryan, by James Ryan, her guar
agt. Thomas Fowler.
The abovenamed plaintiff
, James Ryan, who is admitted by the said court now here to prosecute this action as the guardian of the said Elizabeth Ryan, an infant under the age of twenty-one years, to wit, of the age of fourteen, or thereabouts, complains:
That the said defendant, on the 14th day of October, 1853, and for a long time before that, was the proprietor and lessee, and, by himself and his servants and agents in that behalf, was in the actual use and occupation of certain buildings situated at Cohoes, in said county, known as Thomas Fowler's Mill, consisting of one large brick building, with a wheel-house and other out-buildings attached thereto, and was so used and occupied by the defendant in the business of knitting and manufacturing
1 As to the proper mode of averring the appointment of a guardian of an infant, see note 2, ante, p. 283. Within the decision of Halbert 0. Young ( 13 How., 413), the above allegation would not, perhaps, be sufficient.
certain woolen goods, the machinery whereof being at the time aforesaid driven by water power.
That during the period last aforesaid, said defendant kept and maintained, as a necessary apartment, to and for the use of all females employed in said mill, a certain wooden structure, designed, used and occupied as a privy ; that the same was situated on the upper part of said wheel-house, immediately over the water-wheel, and attached to and communicating by a door with the said main building.
That said Elizabeth, during the period aforesaid, was employed in said mill by said defendant. That it then and there was the duty of said defendant, his agents and sevvants, to use due and proper care for the personal safety of said Elizabeth, as well as of all the other operatives in said mill ; that it was the duty of said defendant, his agents and servants, to see that said privy was kept in proper repair and safe condition, for the purpose for which it was being daily used, and to see that the same was properly secured, so as to prevent the same from falling when used for the purpose aforesaid.
Nevertheless the said wooden structure, designed and used as aforesaid, became and was, during the period last aforesaid, through the negligence and want of proper care on the part of said defendant, his agents and servants, decayed, rotten and insecure, insomuch as to be wholly unsafe for the purpose aforesaid.
These allegations of duty are entirely superfluous, they being mere legal conclusions, and are unavailable for any purpose. The facts from which the court can see the legal obligation need be stated only. (Casey v. Main, 14 How., 163; S. O., 5 Abbott, 91.) Unless the duty results from the facts stated, a complaint simply stating that it was the defendant's duty, &c., is bad in substance. The allegation of duty is superfluous where the facts stated show a legal liability, and useless, where they do not; and such was the rule even before the Code. (Pleadings, 283, 284. )
That such being the condition of said wooden structure, used as aforesaid, said Elizabeth, on the said 14th day of October, 1853, being so employed as aforesaid, having occasion to do so, and being entirely ignorant of any danger, stepped into said privy, whereupon the whole structure immediately fell, precipitating said Elizabeth down upon the wheel of said mill, at the time in full motion, wounding and maiming her in the most horrid manner, insomuch that her life was and is greatly despaired of thereby. That, in consequence of said injuries, and to save the life of said Elizabeth, her right leg had to be and was amputated above the knee. That the left foot and toes of said Elizabeth were also wounded, crushed and greatly injured. That said Elizabeth, in consequence of said injuries, became sick, and so has ever since remained and continued, and has been obliged to, and has actually and necessarily paid large sums of money in and about the amputation of said leg, and in endeavoring to be healed and cured of said wound and injuries.
That said Elizabeth, by means aforesaid, was and is permanently crippled and wholly disabled from attending to her accustomed business, or any business whatever, and was and is otherwise greatly injured and damnified.
Wherefore said plaintiff claims judgment against said defendant for the sum of $6,000, with costs of this action.
J. F. CRAWFORD,
Against a municipal corporation for damages occasioned by
negligently constructing a drain and neglecting to keep it in order.
SUPREME COURT-COUNTY OF ALBANY.
agt. The Mayor, Aldermen and Commovalty of
the city of Albany.
Margaret Kirkpatrick, plaintiff, complains of the Mayor, Aldermen and Commonalty of the city of Albany, defenants :
That the plaintiff was the owner and occupant of a building, situate upon South Pearl-street, known as number fifteen, on said street, in the city of Albany, wherein she carried on the business of a grocery and provision store; that there was crossing said street, under ground, from west to east and running under or near her said building, a culvert, drain or sewer, constructed by the defendants, and designed for conducting and carrying off the water running in the same, and also for carrying off the surface water, which flowed on said street and streets adjacent thereto, by means of side drains, with openings in said street running into and emptying in said culvert, drain or sewer; that there was situated at or near her said house, on Pearl-street, a side drain, emptying into said sewer, to carry off the surface water which flowed in and upon Pearl-street aforesaid, all of which culverts, sewers and drains the defendants were bound to keep in repair, and properly secured and freed from obstructions which would prevent the water from flowing freely into and through said