
    (42 App. Div. 539.)
    DONOVAN v. CITY OF OSWEGO.
    (Supreme Court, Appellate Division, Fourth Department.
    July 18, 1899.)
    1. Municipal Corporations—Bond to City — Excavation in Street — Per-
    sonal Injuries—Parties.
    Where one to whom the city of Oswego grants permission to make ac excavation in a street, to connect with a sewer, executes a bond to “pay any and all cost or damage resulting to the city on account of such opening of the street, and save said city harmless” in an action against the city for injuries caused by falling into the opening so made, the person giving such bond is a necessary defendant under the charter (Laws 1895, c. 394. § 364), providing that, when an action is against the city, for which it would have a right of action against another person on a bond, the surety or sureties on said bond must be made co-defendants, as such person is. within the statute, a surety to the city.
    
      2. Same—Damages Claimed in Excess of Those in Bond.
    That the damages claimed for injuries caused by falling into an excavation in a street is in a larger amount than those named in a bond to savt the city harmless in making such opening will not prevent the person giving such bond from being a necessary defendant in an action to recover for such injuries.
    3. Same—Notice to City by Infant.
    An infant, who has been injured by reason of a defect in a street in a city, may make a verified statement of her claim for damages, describing the time, place, cause, and extent of her injuries, when such a statement is required by the city charter before action against it.
    Appeal from trial term, Oswego county.
    Action by Nellie Donovan, by Mary J. Murray, her guardian ad litem, against the city of Oswego. From a judgment entered on & verdict for plaintiff, and an order denying a motion for a new triaL defendant appealed.
    Reversed.
    Argued before HARDIN, P. J., and ADAMS, McLENNAK SPRING, and NASH, JJ.
    Francis E. Hamilton, for appellant.
    D. P. Morehouse, for respondent.
   ADAMS, J.

The plaintiff brings this action to recover damages, for personal injuries sustained by her in consequence of falling inte an open trench or sewer upon West Ninth street, in the city of Oswego, and around which it is alleged in the complaint the defendant had negligently omitted to erect proper barriers and to place proper lights to warn pbople 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 WesY Ninth street by day and by night, and to “pay any and all cost en-damage resulting to the city of Oswego on account of such opening of the street as above, and save said city harmless.” It is therefore obvious 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 1895, c. 394, § 364. This provision was doubtless incorporated into the defendant’s organic law in order to 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 ex-, pense and annoyance of separate 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 or 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 the 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 Cent. Diet, 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 defendant to an action in which the damages in a much larger amount are demanded 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 making a statement which will be efficient for tire 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.

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