Citation Numbers: 1 Thomp. & Cook 537
Judges: Smith
Filed Date: 10/15/1873
Status: Precedential
Modified Date: 11/15/2024
The learned referee by whom this cause was tried found, as matter of fact, that “the plaintiff’s bridge was thrown down, broken and substantially destroyed by and through the neglect of the contractors employed by the city, and the city surveyor properly to stay and brace the same, and otherwise properly prepare for the removal thereof, and by and through their negligence and want of skill and care in such attempted removal and change of the said plaintiff’s said bridge, by means whereof the plaintiff was damaged to a large amount.”
The referee also found, as a conclusion of law, that the defendant had no lawful right or authority to remove, or attempt to remove, said bridge, or to change the line or position thereof.
Whether the referee was correct or not in his conclusion of law upon the facts found by him, it seems to me is quite immaterial. If he was correct in his conclusion of law, the defendant was a trespasser in the removal of said bridge, and the action was sustainable on that ground. The case of Lee v. Village of Sandy Hill, 40 N. Y. 451, was an action of trespass.
The defendant in that case, through the action of its trustees, directed an overseer of highway to remove the - plaintiff’s fence, claiming and asserting that such fence was in the highway, and
In applying the rule to municipal corporations universally held in respect to private corporations, the learned judge, following the case of Thayer v. City of Boston, 10 Pick. 516, said that it must appear that the act was done in good faith, and in pursuance of a general authority in relation to the subject-matter. The fact that it was done in good faith is not disputed, but admitted in this case, and the act must fairly also, I think, be, as it was in that case, within the scope of the general power committed to the city government in its control over streets, alleys, highways, cross-walks and bridges, and canals and creeks, by the general provisions in the city charter.
But if the acts of the city authorities are not tortious or unlawful, the recovery is nevertheless right upon the facts found by the referee.
If the city had lawful power and authority to remove said bridge, it was bound to do it in a careful and skillful manner, so as to do the plaintiff no unnecessary damages or injury, and is liable for the negligence of its agents within the cases of Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; West v. Trustees of Brockport, 16 id. 461; Conrad v. Trustees of Ithaca, id. 162, and numerous other cases.
The argument of the defendant’s counsel that so far as the action is an action of negligence it is not sustainable upon the facts, is not properly addressed to us upon this appeal. The appeal brings up nothing but the exceptions taken to the decision and report of the referee upon the law.
The case was made up as a bill of exceptions, adapted and designed, I should suppose, to raise simply questions of law, and does not purport to contain all the evidence given before the referee. We therefore cannot review his findings upon the facts.
It seems to me that there is no ground presented in the case to authorize us to. interfere with the judgment in this case, and the same should be affirmed.
Judgment affirmed.