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drains, culverts and sewers, and they were bound to keep and maintain same in a proper condition and of sufficient capacity to carry off said water ;' and the plaintiff charges that the said side drains, culverts, sewer and main drain became filled
and obstructed, so that they would not carry off the water, yet the defendants refused and neglected to remove said obstructions, and keep said drains, sewer or culvert in proper condition and repair, by reason whereof the premises of the plaintiff were overflowed, and her building and fixtures, together with a large quantity of sugar, rice, flour, salt, and other articles of goods, wares and merchandise, groceries and provisions, then upon said premises, were damaged and destroyed, and the plaintiff was deprived of the use of her said building for a long space of time, and the same was damaged by means of the said water flowing into and upon the same.
And the plaintiff further says, that the grade and level of the said street called South Pearl-street, aforesaid, and the side-walks thereof in front of her said building, had, previous to the committing of the injury hereinafter mentioned, been established for many years, and the side-walks paved and laid in front of said building, and the building itself constructed in accordance with said grade and level, and according to which the ground floor of her said building and store was above the level and grade of said
1 These allegations are legal conclusions, and are altogether unnecessary and superfluous. (See note, ante, p. 473.)
? In an action against a city municipal corporation, to recover damages sustained in consequence of a grating over an area, and a side-walk being in a defective or unsafe condition, it is not enough, to entitle a plaintiff to recover, to prove that the covering was insecurely fastened at the time of the accident, and that by reason thereof, and without fault on his part, he was injured. Notice to the defendant of the neglect or negligence of duty in not ascertaining and remedying it must be shown. (McGinity v. Mayor of New-York, 5 Duer, 674.) street, and above the said side-walk, and then and there continually from thenceforth the said plaintiff had for herself, her servants, her customers, and for the proper, safe and profitable transaction of her business as a grocer, a way from said lot and building into, upon and along the said public street called Pearl-street, and so back again ; yet the said defendants wrongfully and negligently filled up the said street and side-walk called Pearl-street, in front of and immediately adjoining the said premises of the said plaintiff, with large quantities of earth and stones, wood, gravel and other materials, and kept and continued the same for a long space of time, and did tear up, remove and destroy the pavement and side-walk of the said street called South Pearl-street, and did keep and continue the same so torn up, removed and destroyed for several months, and did destroy, alter, heighten and increase the grade and level of said South Pearl-street, in front of her said premises, and did raise and construct, and have continued until the present time, an embankment in front of her said premises, and raised the side-walks in front thereof, by means of which the ground floor of her said dwelling is sunk, and is much below the grade and level of said street, so fixed, established and being as aforesaid, so that the ground floor of her said store is much below said side-walk, by means whereof the surface water of the street has flowed in and upon her said premises, damaged and injured her said premises and her merchandise ; and the value of her said premises and of her business as grocer, as aforesaid, has been greatly injured and reduced, and by means of which the said plaintiff has also been put to great expense in making repairs to her said building, and in repairing the damages and injury done thereto by defendants.
And the plaintiff says, that by reason of the premises abovementioned, she has sustained damages to the amount of $1,500, for which amount she demands judgment against the defendants, besides costs of this suit.
( No. 63.)
For injury to the person of the plaintiff by the carelessness
and negligence of the defendants.
SUPERIOR COURT - CITY OF NEW-YORK.
Nathan R. Lothrop
agt. Anthony B. Allen and Richard L Allen.
The complaint of the abovenamed plaintiff respectfully shows:
That before and at the time of the committing of the wrong and grievance hereinafter mentioned, and at the city of New York, the said defendants were copartners in business, under the firm name of “A. B. Allen & Co.," and, as such copartners, occupied and enjoyed certain premises, situate in the upper part of a certain building in East Twenty-Fifth-street, in said city, known as the Empire Iron Works, for manufacturing and other purposes.
That on or about the 28th day of July, in the year 1849, the said plaintiff, then, and for a long time previous thereto, being in the employ of Thomas J. Sloane & Co., who then occupied the lower part of said building, was lawfully engaged, together with others, by order and direction of said Sloane & Co., in pushing or rolling by hand through a doorway, into said building, a large iron wheel of about two tons in weight; and while plaintiff was so engaged, and, necessarily and in the pursuit of his legitimate business, was standing immediately without or partially in or about the doorway or entrance, and after the said plaintiff had commenced to assist, as aforesaid, in moving or rolling in the said wheel, the said defendants, notwithstanding that they were cautioned against the danger of so doing while plaintiff was so engaged as aforesaid, began to hoist certain plank or pieces of timber, by means of a hoistway, with machinery for that purpose, into the upper part of the said building abovementioned, and persisted in doing so, notwithstanding that they were requested by plaintiff and others to desist therefrom until the said wheel should be rolled into the said building, and the men so employed thereon out of the way; that the said plaintiff could not then leave the said wheel and doorway without thereby greatly endangering the lives and persons of one or more of those who were so engaged with him in getting in the said wheel as aforesaid ; that the said hoistway and machinery were situated immediately over the said doorway or entrance into the said building ; that the said plank or timbers were so negligently and carelessly slung, or prepared for hoisting, and handled and hoisted by the said defendants, that through their mere and gross negligence, inattention and want of proper care and management, the same slipped from the sling or hoisting apparatus by which they were suspended and partially hoisted, and, notwithstanding the utmost exertions and care of plaintiff to avoid the same, and without any negligence or want of proper care and attention on his part, the said plank or timbers, some or one or all of them, fell upon and crushed the leg of the said plaintiff, so that he was thereafter compelled to have it amputated in consequence thereof; and by means thereof the said
plaintiff then and there became and was greatly hurt, and suffered great pain of body from thence until the present time, during all which time the said plaintiff has been hindered and prevented from performing and transacting his lawful affairs and business as theretofore, and in consequence of said injury has since been put to great expense and charges, in the whole amounting to about the sum of $400, in endeavoring to be healed of the said wounds and sickness, so occasioned as aforesaid, and in paying his board and other necessary expenses attendant upon and growing out of his said illness and injury, and in procuring an artificial leg, in lieu of his said leg so amputated as aforesaid, and hath been and is, by means of the premises, otherwise greatly injured; and will, as he is advised and verily believes, be incapacitated, by means of said injury, during the term of his natural life, from pursuing his usual and necessary business and affairs.
And therefore he demands judgment against the said defendants for the said sum of ten thousand dollars, together with the costs of this action.
THOMAS S. SOMMERS,