
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’t, v. John Brady et al., App’lts.
    
      (,Supreme Court, General lerin, First Depa/rtmént,
    
    
      Filed November 16,1894.)
    
    1. Municipal corporation—Obstructions in street—Liability.
    Where a recovery has been had in an action against a city for injuries caused by negligence of a contractor, in which action notice to defend was given to him, the city may, in an action on his bond, show, by evidence aliunde the record in the former action, that the presence of the obstruction was the subject-matter upon which the person injured relied to recover.
    2. Same.
    The judgment in the action against the city is conclusive upon the contractor in an action by the city on his bond to recover the amount of such judgment.
    3. Same.
    A contractor who obstructs, though with the consent of the city, a side walk without guarding the obstruction, so as to protect the public from injury, is liable to the city for the damages which it is compelled to pay on account of injuries caused thereby.
    Appeal from a judgment directed for plaintiff.
    
      Joseph A. Flannery, for app’lts; Charles Blandy and Terence Farley, for resp’t.
   Parker, J.

When first before this court, there was a reversal of the judgment in favor of the plaintiff, on the ground that it had failed to show that, as between the city and the defendants, the latter were primarily liable for the wrongful act which occasioned Cruikshank’s injuries, and which supported his recovery. 70 Hun, 250; 54 St. Rep. 1. The record then before the court showed that the plaintiff, to make out its cause of action, had put in evidence the contract between the city and Nutt & Kearns, contractors; the bond given for the faithful performance thereof, on which these defendants were sureties; the commencement of an action against the city by Cruikshank, claiming damages for injuries occasioned by his falling over a pipe which had been negligently placed across the sidewalk by Nutt & Kearns, while at work under their contract with the city; a written notice from the corporation counsel to Nutt & Kearns and their sureties, these defendants, stating the pendency of the action and the purpose of it, and asking that they defend_ the action at their own expense; the judgment roll in the action, and proof of payment of the judgment by the city, together with the amount of the expense incurred by the city in defending the action. The fourth subdivision of the complaint in the Cruikshank action, in its statement of facts, set' forth that Nutt & Kearns negligently left a pipe across the sidewalk, over which the plaintiff fell and was injured. The fifth subdivision contained the allegation that the “city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.” It was held that the result of these allegations was that the injury was occasioned by the concurring 'acts of the contractors and the city, and the issue as to which of the parties were primarily liable as between themselves wasmot presented nor tried. It so happened that on the retrial the court refused to receive the evidence offered by the plaintiff for the purpose of establishing that, as between the city and Nutt. & Kearns, the latter were primarily liable for the injury sustained by Cruikshank, and the judgment rendered in favor of the defendants was reversed for that reason. 77 Hun, 241; 59 St. Rep. 773. On the third trial, the evidence presented on the first trial, and to which we have referred, wjas introduced. In addition, it was shown by proof aliunde the record that the presence of the pipe, unprotected, upon the sidewalk, was litigated in the Cruikshank action, and constituted the subject-matter upon which Cruikshank relied to recover. This evidence was competent. City of Cohoes v. Morrison, 42 Hun, 216; 5 St. Rep. 106; Hymes v. Estey, 116 N. Y. 501; 27 St. Rep. 555; Lorillard v. Clyde, 122 N. Y. 41; 33 St. Rep. 303; Lewis v. Ocean N. & Pier Co., 125 N. Y. 341; 34 St. Rep. 973; Rose v. Hawley, 133 N. Y. 315; 45 St. Rep. 119.

The judgment roll, in connection with such proof and the notice given to the contractor and sureties to come in and defend that action, established (1) that Cruikshank was injured by falling over the pipe ; (2) that leaving the pipe in the situation in which it was, and without guard or protection, constituted negligence ; (3) that Cruikshank was free from contributory negligence; and (4) that he was damaged in the amount for which he had recovery. On the question of primary liability, the plaintiff proved that the -pipe was put in the position in which it was at the time of the accident by the contractors, Nutt & Kearns. As this evidence was not disputed, there only remained the question whether the presence of the city’s inspector at the time the pipe was laid, by virtue of his authority under the contract, made the act of laying the pipe in the manner in which it has done the city’s act. The defendant’s counsel insisted otherwise, and claimed the right toi try anew the question whether the act of which Cruikshank had complained was wrongful. The trial court rightly ruled against him. Mayor, etc., of Troy v. Troy & L. R. Co., 49 N. Y. 657; City of Rochester v. Montgomery, 72 N. Y. 67; Heiser v. Hatch, 86 N. Y. 614; Village of Pori Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 550; City of Rochester v. Campbell, 123 N. Y. 408; 34 St. Rep. 77.

We shall now inquire what effect, if any, the presence of the inspector at the time the pipe was laid, and his assent to its laying, had upon the question of primary liability as between the city and Nutt & Kearns. True, the evidence does not show that he was presented and assented, but evidence tending in that direction was offered and excluded; and, for convenience, we shall treat the question as if such facts liad been proved. The provision of the contract upon which defendants mainly found their contention is as follows: “The said commissioner of public works shall be, and is hereby, authorized to appoint such person or persons as he may deem proper to inspect the materials to be furnished and' the work done under this agreement.”

There are other provisions affecting the duty of the inspector and engineer, but they do not confer upon such employes the right to authorize or sanction the doing of a negligent or improper act by the contractors while engaged in the performance of their contract. As stated by Judge Folg-er in City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 480: “The clause is, in effect, no more than a reservation to the plaintiff of a right of supervision of the work as it goes on, so that it shall have concurrent check upon a faulty or deficient performance by the defendant.”

But, assuming that the inspector or engineer could so far represent the city as to authorize the laying of the pipe across the walk, still the contractors were bound to guard it, and do all things needful to save the public from injury. If the right to lay the pipe was acquired by the action of the inspector and engineer, it carried with it to the contractors the obligation to so protect and guard it as to warn passers-by, and thus save them from injury. “Consent by a municipal corporation to a person to do a lawful act merely permits it to be done in a careful, prudent, and lawful manner; and when it is performed in any other manner, and an injury to third persons ensues, the author of the injury is liable therefor.” Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 557. Had the contractors performed their full duty by so guarding the pipe as to warn travelers of its presenpe on the walk, there could have been no recovery in the action of Cruikshank against the city.

The judgment should be affirmed, with costs.

All concur.  