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2. MUNICIPAL CORPORATIONS ($ 790*)-BUILDING MATERIAL ON SIDEWALK-IN

JURY TO PEDESTRIAN-LIABILITY OF CITY.

A city, which gives a permit to place material in front of a building during work on it, is not liable for injury to a pedestrian from the negligent arrangement of the material; it not having had notice of the defective condition of the street and not having been responsible for the placing of the material there.

(Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$

1645, 1646; Dec. Dig. $ 790.*] 3. MASTER AND SERVANT (318*) — OBSTRUCTION OF SIDEWALK — INJURY TO

PEDESTRIAN-PERSON LIABLE-INDEPENDENT CONTRACTOR.

The owners of a building, permitted during work thereon to pile material in front of it, cannot free themselves from liability, through failure to keep the street reasonably free from obstructions, for injury to a pedestrian from the obstruction, by showing the work was being carried on by an independent contractor, who appears to have been more or less under their supervision.

(Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1237,

1258; Dec. Dig. & 318.*) 4. MUNICIPAL CORPORATIONS (& $18*)-OBSTRUCTION OF SIDEWALK-INJURY TO

PEDESTRIAN-NEGLIGENCE-EVIDENCE.

Evidence that other people had fallen at the same place about the same time is admissilile as against the owners of the building on the questions of negligence and contributory negligence, in an action for injury to a pedestrian from falling over building material piles in a street in front of a building on which work was being done.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. & 1735; Dec. Dig. Š 818.*] Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Morris Friedman against the City of New York and others. Judgment for defendants, and plaintiff appeals. Affirmed in part and reversed in part.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Jerome H. Buck, for appellant.

Francis K. Pendleton (Theodore Connoly and Thomas F. Noonan, of counsel), for respondent City of New York,

Hillquit & Hillquit (Bertram L. Marks, of counsel), for respondents Bloom & Shapiro.

PER CURIAM. The plaintiff appeals from a judgment dismissing the complaint on the merits at the close of the whole case. The city of New York issued a permit to the defendants Bloom & Shapiro to place building materials in front of No. 109 Lewis street. Bloom & Shapiro placed certain boards on the sidewalk in front of No. 109 Lewis street. The plaintiff struck his foot against one of the projecting boards, and fell, and sustained injury.

The theory of the plaintiff's case is that the boards constituted a nuisance. The boards were merely a temporary obstruction of the sidewalk, and the city had power to authorize its existence during the alteration of the building of Bloom & Shapiro. This obstruction, having been erected with the consent of the city and under its license, For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Iudexes

must be regarded as being governed by the principles of the law of negligence, and not the law of nuisance. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132, 14 L. R. A. 398. The city was not liable under any circumstances, as no evidence was given to show notice to it of the defective condition of the street where the boards were, and because it was not in any way responsible for placing these boards upon the street. The complaint was, therefore, properly dismissed as to the city.

The trial justice, however, should not have dismissed the complaint as against the other defendants. There was evidence sufficient to go to the jury on the question of the plaintiff's freedom from contributory negligence, especially in view of the fact that he is 87 years of age. There was also sufficient evidence to go to the jury upon the question of the negligence of the defendants Bloom & Shapiro in failing to keep the street reasonably free from obstructions; nor could these defendants free themselves from such a duty by showing that the work was being carried on by an independent contractor, who appears to have been more or less under their supervision.

The court also erred in its exclusion of evidence as to other people having fallen at the same place at about the same time, because this was material upon both the negligence of these defendants and plaintiff's contributory negligence.

The judgment should be affirmed, in so far as it provides for the dismissal of the complaint as against the city of New York, with costs to the city, but reversed in so far as it provides for the dismissal of the complaint as against the defendants constituting the firm of Bloom & Shapiro, and a new trial ordered, with costs to appellant to abide the event.

BROCKMAN V. PAPE.

(Supreme Court, Appellate Term. May 7, 1909.) 1 Courts ($ 189*)—MUNICIPAL COURTS-SETTING ASIDE JUDGMENT-GROUNDS

-MODE OF TRIAL.

After hearing all the evidence in a cause, the justice trying the cause stated that he did not wish to decide the case, and asked the defendant's attorney whether he would be willing to try the case before a jury, to which the defendant's attorney assented. The justice then suggested that, instead of waiting for a jury trial, the case be retried before another justice in another part of the courthouse. The parties then proceeded to trial before the second justice de novo, and judgment was rendered for plaintiff. Held, that the judgment would not be set aside because of the intimation of the first trial justice that the case ought to be tried be fore a jury, in the absence of any positive contention that the judgment rendered was against the weight of the evidence; the intimation of the justice not furnishing any of the grounds for setting aside a judgment prescribed by Municipal Court Act (Laws 1902, p. 1563, c. 580) § 23t.

[Ed. Note.-For other cases, see Courts, Dec. Dig. $ 189.*] 2. JURY (828*)-RIGHT TO JURY TRIAL-WAIVER.

Where, after a justice before whom evidence in a cause was heard re fused to make a decision, intimating that the cause ought to be tried by a

Jury, defendant, instead of waiting for a jury, consented to proceed at once de novo before another justice, he waived his right to a jury trial.

(Ed. Note.-For other cases, see Jury, Cent. Dig. $$ 181, 186, 187; Dec. Dig. $ 28.*] Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Annie Brockman against Paul Pape. From an order of the Municipal Court setting aside a judgment for plaintiff, rendered after a trial without a jury, and setting the case down for trial with a jury, plaintiff appeals. Order reversed and vacated, and judgment reinstated.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Jellenik & Stern (Nathan D. Stern, of counsel), for appellant.
Emil E. Fuchs, for respondent.

PER CURIAM. The action came on for trial before Justice Joseph on January 27, 1909, without a jury. After all the evidence on both sides had been offered, Justice Joseph (as stated upon respondent's brief and as appears from the decision upon which the order appealed from was entered) stated that he did not wish to decide the case, and asked the defendant's attorney whether he would be willing to try the case before a jury, to which the defendant's attorney assented. Justice Joseph then suggested that, instead of waiting for a jury trial, the case be retried before Mr. Justice Roesch in part 2 of the court at once. The parties then proceeded to trial before Justice Roesch de novo, and decision was reserved until the following day, when judgment was rendered for plaintiff for $255. Two days thereafter, to wit, on January 30, 1909, the defendant secured an order to show cause, returnable before Justice Roesch, "why the judgment heretofore rendered in said action on the 28th day of January, 1909, and fully described and set forth in said affidavit, should not be opened, vacated, and set aside, and a new trial granted before a jury, and why said defendant should not have such other and further relief,” etc.

The affidavit upon which this order to show cause was secured recites the trial by Justice Joseph, his refusal to decide the case, the sending of the case to Justice Roesch, the trial before him, and the judgment in favor of the plaintiff. It then proceeds to a brief summary of the evidence, after which it repeats the statement "that Mr. Justice Joseph intimated, after refusing to give a decision after hearing all the testimony therein, that the case should be tried before a jury, and your deponent submits that the great preponderance of evidence in this case and the logical truth of the two stories told is clearly in favor of the defendant, in that”—and here follow six separate statements of what the defendant says was the effect of the testimony of various witnesses. This affidavit is made by one Tyler, who describes himself as of counsel for the defendant. It is followed by an affidavit, made by the attorney of record, which states simply that he has read Tyler's affidavit and knows iť to be true. The above constitute all the moving •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.-48

papers, except that the order to show cause contains the usual omnibus recital, "upon all the papers and proceedings in the above-entitled action.” There appears, also, in the record, an affidavit of Pape, the defendant, over date of February 3, 1909 (the order to show cause being returnable February 2, 1909), in which he denies certain transactions with the payee of the check (which was indorsed to plaintiff and upon which the action was brought) and alleges that he has newly discovered evidence which he desires to be introduced.

The order appealed from recites the three affidavits (although the affidavit of Pape was not a part of the moving papers), the “sumnions, pleadings, papers, and proceedings herein," and decrees that the judgment “be and the same hereby is in all respects vacated and set aside, and a new trial ordered herein before a jury.” The decision upon which the order was entered states in brief that Justice Roesch did not know that Justice Joseph had fully tried the case and intimated that he would not decide it because it ought to be tried before a jury, and states that the case “is in fact peculiarly a case which should have been tried before a jury.” It appears, therefore, that the application was based and the order granted upon the intimation of the first trial justice that the case ought to be tried before a jury. The inferential statement in the moving affidavit of Tyler is unimportant. It amounts to nothing more than a suggestion that possibly a jury might not agree with Justice Roesch upon a new trial. Nowhere in the record is there any positive contention that the judgment is against the weight of evidence. The application to set it aside was not based upon that theory, as is apparent from the order to show cause. The order setting aside the judgment was not granted upon that ground, as appears both from its face and from the opinion of Justice Roesch.

We think the order was not within any of the requirements of section 254 of the Municipal Court act (Laws 1902, p. 1563, c. 580), and was without authority. In addition thereto, whatever rights defendant had to a jury trial were clearly waived. After the trial before Justice Joseph, and after his intimation that he regarded a jury trial desirable, defendant on his own showing consented, instead of waiting for a jury trial, to proceed at once de novo before Justice Roesch without a jury. This was done, and decision reserved, and Justice Roesch decided against the defendant after due deliberation. Under such circumstances it is extremely doubtful if Justice Roesch could have set aside his own judgment as against the weight of evidence, if the application had been made and granted on that ground. It would seem that he became functus officio from the rendition of the judgment under such circumstances, which are not contemplated by section 251 of the Municipal Court act. Can it be suggested for a moment that when a defendant has tried his action before one judge, and then retried it before another because the first one refused to decide the matter, waiving on the second occasion a jury trial, then, because he has been defeated on the second attempt, he can then come in and move to vacate the judgment, in order to get the jury trial which he has waived? We

tion granted upon the ground that, after all, a jury trial might be more satisfactory.

The order appealed from must be reversed and vacated, and the judgment reinstated, with costs to the appellant in this court and in the court below.

TRENTACOSTE V. CRONIN.

(Supreme Court, Appellate Division, First Department. May 7, 1909.) 1. MASTER AND SERVANT ($ 286*) — LIABILITY FOR INJURIES – WAYS USED IN

WORK-QUESTION FOR JURY.

A servant was employed to wheel dirt at night along a wharf to a SCOW over a loose piank, and fell into the water and was drowned. Held, that the plank was a way which it was the duty of the master to make reasonably safe, and it was a question for the jury whether the master had fulfilled this duty.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. § 1010;

Dec. Dig. § 286.*] 2. MASTER AND SERVANT ($ 288*) - LIABILITY FOR INJURIES - QUESTION FOR

JURY-ASSUMPTION OF Risk..

It was a question for the jury whether the servant, knowing the inse curity of the way, assumed the risk.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. 88 1076, 1077; Dec. Dig. § 288.*]

Appeal from Trial Term, New York County.

Action by Giacomo Trentacoste, as administrator of Ciro Trentacoste, against Bartholomew S. Cronin. Judgment dismissing complaint after trial, and plaintiff appeals. Reversed.

Argued before PATTERSON, P. J., and LAUGHLIN, HOUGHTON, MCLAUGHLIN, and SCOTT, JJ.

Andrew S. Fraser, for appellant.
Charles W. Church, Jr., for respondent.

PER CURIAM. The plaintiff appeals from the dismissal of his complaint. The action is a statutory one by an administrator for damages for the death of his intestate. The evidence showed that the deceased, a laborer, was employed in the nighttime in wheeling dirt along a wharf or pier and by means of a plank to a scow lying alongside. As he was walking along this plank, which was not fastened either to the wharf or the scow, it moved or tilted, and he fell into the water and was drowned.

The plank was undoubtedly a "way," and it was the duty of defendant to furnish a way which was reasonably safe both as to its construction and its lighting. We are of the opinion that, upon the evidence, it was a question for the jury whether or not defendant had fulfilled his duty in that regard.

So far as concerns the question whether the deceased, knowing the insecure character of the way, assumed the risk was certainly a question for the jury. Reilly v. Troy Brick Co., 184 N. Y. 399, N. E. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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