Village of Port Jervis v. First National Bank , 38 N.Y. Sup. Ct. 107 ( 1883 )

Barnard, P. J.:

.The defendant would have been liable to Mrs. Hart as a wrongdoer. The bank had without authority of law made a dangerous place in the highway and this lady had fallen into it and been injured. The negligence of the defendant would have had no relevancy, nor her contributory negligence. The act was wrongful and the defendant would have been bound to keep the place safe at all hazards. Mrs. Hart did not sue the creator of the nuisance, but brought her action against the plaintiff. In this case, against the village, the liability was made out by showing that the hole continued so long and was so apparent, that the village was chargeable with negligence as against the traveler in not filling up or otherwise guarding the same. The village was cast in damages for this neglect. The defendant knew of the action; the president of the defendant and its building committee. He was also a member of the board of trustees and one of the committee on streets of the plaintiff. He was a witness upon the trial which Mrs. Hart brought against the village. He consulted with the lawyer of the village about the action and the liability over of the bank in case Mrs. Mart recovered judgment and was a witness on the trial in favor of the village. He directed the case to go to the Court of Appeals and it was done as he directed. The defendant is bound by that judgment. In Heiser v. Hatch (86 N. Y., 614, MSS. opinion), the rule is laid down as follows :

“ When a person is responsible over to another either by operation of law or express contract, and he is duly notified of the pendency of the suit, he is no longer regarded as i stranger, beca'üse he has the right to appear'and defend the.action; and the judgment, if got without fraud or collusion, will be conclusive against him. (Littleton v. Richardson, 34 N. Y., 187.) The case last cited has the qualification that there is a request to take hold of the defense, but this is not necessary.” (Blasdale v. Babcock, 1 Johns., 517; Chicago v. Robbins, 2 Black, 418.)

There is no error therefore in the charge of the judge that the bank had notice of the pendency of the Hart action sufficient to bind the bank by the Hart judgment against the plaintiff. (Holden v. N. Y. and Erie Bank, 72 N. Y., 286.) The liability follows necessarily. The rule has always been that when liability over1 was by contract, as in cases where a party agreed with the city to guard the obstruction and failed, and the city was held in damages, that the action over was proper. (City of Brooklyn v. Brooklyn City R. R., 47 N. Y., 475.)

In Robbins v. Chicago (4 Wallace, 657), in a very similar case to the present one, the court held that the city was primarily liable, but had an action over against the wrong-doer by operation of law-The Court of Appeals in the City of Rochester v. Montgomery (72 N. Y., 65), maintained an action by a city against the defendant who had placed an unlawful obstruction in a street or had negligently permitted it to remain there unguarded. The court mentions with approval the case of Robbins v. The City of Chicago, above cited.

The judgment was, therefore, properly recovered and should be affirmed, with costs.

Pratt, J. concurred. Present — Barnard P. J., Dykman and Pratt, JJ.

Judgment and order denying new trial affirmed, with costs.