
    Nellie Donovan, an Infant, by Mary J. Murray, her Guardian ad Litem, Respondent, v. The City of Oswego, Appellant.
    
      Negligence—permission to open a trench in a street of Oswego— a pa/rty executing a bond to indemnify the city is a necessa/i'y party, under section 364 of the city chm'ter, to an action against it for injury — verification of a claim by an infant.
    
    Under section 364 of the charter of the city of Oswego (Laws of 1895, chap. 394), providing that ‘ ‘ whenever an action is brought against the city on a claim for which the city would have the right of action against another person, company or corporation upon a bond, the surety or sureties on said bond must be made co-defendants in said action,” a resident of the city of Oswego who obtains permission to open a trench in the street in front of her house upon her executing an instrument in which she binds herself, her heirs, executors, administrators and assigns in a certain penal sum to “ pay any and all cost or damage resulting to the city of Oswego on account of such opening of the street as above and save said city harmless,” is a necessary party defendant to an action brought against the city to recover damages for injuries sustained by the plaintiff in consequence of the alleged improper guarding of the trench, notwithstanding the fact that the penal sum mentioned in the instrument is less than the amount of damages claimed in the action.
    Such an instrument is a bond, and the liability of the person executing it is that of a surety within the meaning of the section.
    In such a case the infancy of the plaintiff does not disqualify her from executing the verified statement of her claim required by section 345 of the charter.
    Appeal by the defendant, The City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 10th day of February, 1899, upon the verdict of a jury for $1,500, and also' from an order entered in said clerk’s office on the 9th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Francis E. Hamilton, for the appellant.
    
      P. P. Morehouse, for the respondent.
   Adams, J.:

The plaintiff brings this action to recover damages for personal injuries sustained by her in consequence of falling into an open trench or sewer upon West Ninth street, in the city of Oswego, around which it is alleged in the complaint the defendant had negligently omitted to erect proper barriers and to place proper lights to warn people of the unsafe, defective and dangerous condition of the street.

This trench, it appears, had been'excavated opposite the residence of one Mary A. Glynn, presumably to enable her to connect her premises with the trunk sewer running through the center of the street; and in order to obtain permission from the municipal authorities to make such connection, Mrs. Glynn had executed, under her hand and seal, an instrument in writing, whereby she bound herself, her heirs* executors, administrators and assigns, to the city of Oswego, in the penal sum of $500, to properly guard the opening to be made by her in West Ninth street by day and by night, and to “ pay any and all cost or damage resulting to the city of Oswego on account of such opening of the street as above, and save said, city harmless.”

It is obvious, therefore, that if the plaintiff shall be able to maintain the cause of action set forth in her complaint, and establish any negligent omission upon the part of the city to properly guard the excavation into which she fell, the city will have the right to call upon Mrs. Glynn to save it harmless from .such damages as the plaintiff may recover to the extent of the amount nominated in the bond above referred to; and this being the case, it is insisted that Mrs: Glynn should have been made a party defendant to this action, inasmuch as the city charter provides that “ whenever an action is brought against the city, on a claim for which the city would have the right of action against another person, company or corporation upon a bond, the surety or sureties on said bond must be made co-defendants in said action. * * * * ” (Laws of 1895, chap. 394, § 364.)

This provision was, doubtless, incorporated into the defendant’s organic law in order tó enable the city to protect itself from the negligent or wrongful acts of third parties, for which the city might be primarily liable to persons injured in consequence thereof, without resorting to the expense and annoyance .of sepárate actions against the various wrongdoers. It is,- therefore, one upon the observance of which the defendant has a right to insist; and, inasmuch as the plaintiff has seen fit, either inadvertently of for some other cause, to disregard its plain mandate, we fail to see why she should be permitted to maintain her action.

The objection that there is a defect of parties defendant is one which may properly be raised by answer when it does not appear upon the face of the complaint (Code Civ. Proc. § 498); and while it is true that in this particular instance the pleader has failed to aver such defect with that degree of particularity which the plaintiff might have required had she insisted upon her strict legal rights, it, nevertheless, appears that upon the trial the defendant’s charter was before the court; its provision regarding the necessity of making Mrs. Glynn a party defendant was fully and freely discussed, and the bond in question was actually introduced in evidence by the plaintiff. In these circumstances, we are persuaded that the plaintiff is now in no .position to insist either, that the defense of a defect. of parties defendant was not sufficiently pleaded, or that the defendant’s charter was not offered in evidence.

But it is contended upon the part of the plaintiff that Mrs. Glynn is not a proper party defendant to this action, for the reason that the instrument executed by her is not a bond, and for the further reason that the obligation assumed by her when she signed the instrument, by whatever name it may be called, was that of a principal and not a surety. We think that- neither of these propositions can be successfully maintained.

The obligation in question, although somewhat unconventional in form, obviously possesses all the essential elements of a bond. It. is signed and sealed by the obligor, who binds herself, her heirs, executors, administrators and assigns, in a penal sum, which is fixed, to perform certain duties and to save the obligee therein named from all cost and damage resulting from her interference with the surface of the street. This, certainly, constitutes a binding obligation which would be available to the city in the event of a breach of any of the covenants which it contains; and although Mrs. Glynn is the principal obligor, she is the only person liable upon an instrument which is designed to secure and indemnify the obligee against loss or damage. The bond, therefore, is a security, and any party obligated thereby is in a certain sense a surety to the defendant that the obligation will be fulfilled. (See Century Dictionary for a definition of the noun “ surety.”)

It has been suggested that the liability of the surety being limited to the amount named in the bond, there would be no propriety in making her a party to an action in which damages in a much larger amount are deinanded and liable to be recovered ; but this is a matter for adjustment between the obligor and obligee at the trial, and is one which in no way affects the right of the defendant to insist that the plaintiff shall observe the requirements of the charter as a . condition of maintaining her action.

It is further urged by the defendant that the plaintiff has failed to comply with a provision contained in section 345 of its charter, which requires that a verified statement of her claim for damages, describing the time, place, cause and extent of her injury, shall be presented to the common council'of the city within three.months after the happening thereof. . It is. not pretended that, such a statement was not served upon the common council within the time named, but it is insisted that the same was ineffectual by reason of the fact that the plaintiff was an infant at the time she executed the same.- This contention is clearly untenable. The office of such a statement as' the one required by the defendant’s charter is simply to furnish the municipality with such information as will enable it to either adjust or defend the claim presented; and the mere fact that the claimant is an infant certainly does not disqualify her from mating a statement which will be efficient for the purpose for which it is designed.

The result of' our consideration of the various questions presented by the appellant is, that the judgment and order appealed from should be reversed, by reason of the omission of the plaintiff to make Mrs. Glynn a party defendant.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to flic appellant to abide the event.  