
    Herman Markowitz, as Administrator, Respondent, v. The Dry Dock, East Broadway & Battery Railroad Co., Appellant.
    (New York Common Pleas
    General Term,
    May, 1895.)
    In an action for death alleged to have been caused by'the existence of a large snowbank along the track of a street railroad, evidence that the company removed the snowbank on the day following the accident is inadmissible. Gieqerich, J., dissents.
    Such evidence is not admissible to show the exercise by the railroad company of authority or control over the place where the bank was, as the municipal ordinance required it to remove the snow thrown up by its snow plough, and the mere compliance with a municipal ordinance is no evidence of the exercise of dominion over the portion of the street where such snow lay. Gtegbrich, J., dissents.
    A certificate of death filed with the hoard of health, pursuant to section 604 of the Consolidation Act, by a coroner who held the inquest, is admissihie, in an action against a railroad company for negligently causing such death, as evidence of the age of the decedent.
    Appeal by the defendant from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial.
    Action to recover damages sustained by the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant’s driver in the management of one of its cars.
    The material facts are sufficiently stated in the opinion.
    The first appeal taken in this action, which was originally brought by Wilhelmina Friedman, as administratrix, etc., of Henry ..Friedman, deceased, is reported in 3 N. Y. St. Repr. 557, and 110 N. Y. 676, and the second is reported in 33 N. Y. St. Repr. 649, and 11 N. Y. Supp. 429.
    
      John M. Scribner, for appellant.
    
      Aa/i'on Kahn, for respondent.
   Giegerioh, J.

The supplemental complaint, among other things, alleges that the tracks of the defendant, among other places, extended and ran over and along Grand street, between Goerck and Mangin streets, in the city of Hew York; that it was the duty of the defendant to keep that part of said street adjacent to and along which said track ran and extended free from ice, snow and accumulations and obstructions of every kind and nature; “ that on or about January 25th, 189 L, and for some time previous thereto, the defendant unlawfully, wrongfully, negligently and carelessly placed, put and accu- ■ mulated snow, ice and mud along and near said track in said Grand street, opposite Goerck street, and unlawfully, wrongfully and carelessly permitted the same to remain there until said accumulations had formed and been frozen into icebanks, so much so that the same became an obstruction to the public in lawfully traveling across said street; ” that on said day one Henry Friedman was carefully traveling across said street, opposite said tioerclc street, and in order to do so he was necessarily compelled to cross and pass over said track of the defendant and said bank of snow, ice- and mud, and while so crossing the said track along said public highway, and as he reached said track, a car of the defendant rapidly approached the place where said Henry Friedman was passing, and, in consequence of the negligence of the driver thereof, threw him down upon the ground and passed over his right leg, and he was thereby so injured as to cause his death.

The supplemental complaint also alleges the appointment of Wilhelmina Friedman as administratrix of the goods, chattels and credits of her deceased husband; her death and the appointment of the plaintiff as administrator de bonis non of said Henry Friedman, deceased, and his substitution as plaintiff in the place and stead of said Wilhelmina Friedman, deceased.

The answer contains a specific denial of each allegation of the supplemental complaint, except the incorporation of the defendant, which is admitted.

The testimony adduced on the part of the plaintiff tended to show that the defendant helped to create the snowbank which prevented the escape of plaintiff’s intestate from the rapidly-approaching car, which ran him down. Mr. Markowitz, the plaintiff, testified that he saw a snowplow or sweeper of the defendant with its own name thereon sweeping up the snow upon the said bank, which in a few days became frozen to ice. This was disputed by defendant’s witness, who claimed that plaintiff was mistaken in reference to the snowplow he saw, and according to the testimony of the witness called by the defendant said snowbank was not created by the snowplow of the defendant or any other company, but was composed of snow removed by citizens from the sidewalk and the back yards of adjacent premises, and by them deposited in the street after the railroad companies had removed and carted away all snow from the place where the accident happened.

In rebuttal the plaintiff was recalled and against the defendant’s repeated objections and exceptions testified to the removal of said snowbank by the defendant on the day after the accident. The appellant insists that error is predicable of the admission of this evidence.

The ruling of this court in Brennan v. lachat, 14 Daly, 197, that evidence of repairs immediately after the accident was admissible as showing some evidence of their being needed, has been overruled by the subsequent decisions of the Court of Appeals in Corcoran v. Village of Peekskill, 108 N. Y. 153, and in the still later case of Clapper v. Town of Waterford, 131 id. 382. These cases hold that the question whether the defendant was negligent must be decided upon the facts as they existed at the time of the injury, irrespective of facts occurring subsequent thereto. But to this rule there is an exception distinctly recognized by the court in the last-cited case, and that is wheré there is a dispute as to the defendant’s control or authority over the place where the- accident happened, the latter’s acts after the accident may be admitted, not as bearing upon the issue of negligence, but for the purpose of showing the exercise of authority or control over such place. Sewell v. City of Cohoes, 75 N. Y. 45, 54; Morrell v. Peck, 88 id. 399.

One of the issues presented by the pleadings is whether the defendant erected said snowbank and permitted the same to remain for such an unreasonable length of time that it became an obstruction in the street, and hence the testimony of the plaintiffs as to the removal of the snowbank by the defendant after the accident was relevant.

It may be argued that the testimony so admitted should have been expressly limited in its application to the question of control or dominion of the snowbank by the defendant. As it was relevant to an issue in the case, such evidence could not have been excluded (Platner v. Platner, 78 N. Y. 95; Hagerty v. Andrews, 94 id. 195 ; 1 Rice Ev. § 252, p. 499); but if its express restriction to such issue was deemed desirable by the defendant, a request to that effect should have been made at the trial. The record, however, fails to show such a request, and, therefore, the defendant’s' rights, if any, have in this respect been waived.

It is insisted that it was not the duty of this railway company to remove said snowbank, but as the jury by its verdict has found that such bank was placed in the locality noted and allowed to remain there for an unreasonable length of time by the defendant company, it should be held liable for the consequence of its maintenance of a public nuisance (Davis v. Mayor, 14 N. Y. 506, 524; Lammimg v. Galusha, 135 id. 239, 242), and, therefore, it cannot claim exemption from liability because that duty may also have devolved upon others. Dixon v. Brooklyn City, etc., R. R. Co., 100 N. Y. 170-178. Hence the defendant’s exception taken to the ruling of the learned trial judge in excluding from the evidence chapter 677 of the Laws of 1872, and chapter 335 of the Laws of 1873, appears to me to be without merit.

There was a conflict upon the trial as to the age of plaintiff’s intestate when he received the injuries which resulted in his death four days later. Plaintiff’s counsel told the jury in his opening that the deceased was about fifty-five to sixty years of age; the plaintiff testified that he was sixty-seven years old, but the defendant’s testimony, on the otherfliand, showed him to be seventy-six years of age.

Defendant’s counsel offered in evidence a copy of or transcript from the certificate or record of death filed with the health department of the city of Hew York by the coroner who held the inquest upon the body of plaintiff’s intestate, containing the j>articulars called for and required by section 604 of the Consolidation Act (Chap. 410, Laws of 1882), said copy or transcript being authenticated in conformity with section 621 of the said act, and from which it appears that plaintiff was, at the time of his death, of the age of seventy-six years, eight months and eighteen days. This was objected to as' incompetent, inadmissible and hearsay. The court excluded tlie paper writing, to which ruling the defendant’s counsel excepted.

Plaintiff’s counsel stated that his objection went solely to the statement of age contained in the certificate; but as the defendant’s counsel insisted upon offering it “ as evidence of everything contained in it,” the court was obliged to rule upon the whole offer, and in so ruling sustained the objection.

Section 604 of the Consolidation Act requires coroners of the city of New York who have held an inquest to file with the health department a certificate specifying, as near as the same can be ascertained, the name and surname, age, occupation, term of residence in said city, place of nativity, condition in life, whether single, married, widow or widower, color, last place of residence, and the direct or indirect cause of death of such deceased persons.”

Section 621 of the same act prescribes: “ All courts shall take judicial notice of the seal of said board and of the signature of its secretary and chief clerk. Copies of the record of the proceedings of said board (health department) * * * and books and papers constituting part of its archives, when authenticated by its secretary, or secretary pro tempore, shall he presumptime evidence, and the authentication be taken as presumptively correct, in any court of justice or judicial proceeding when they may be relevant to the point or matter in controversy, of the facts, statements and recitals thereim, contained.”

In Woolsey v. Trustees of the Village of Ellenville, 84 Hun, 236; 32 N. Y. Supp. 543, the court in passing upon a similar statutory provision said: “ While it is quite apparent that the primary object of the legislature in exacting these provisions of law was to furnish information upon the subject of vital statistics for sanitary purposes, yet it is manifest that the language employed is broad enough to make these certificates such as the act expressly declares shall be admitted in all the courts of this state prima facie evidence of the facts therein set forth.’ Under such circumstances we think tbe certificates were competent evidence.”

The case of Buffalo, L. T. & S. D. Co. v. Knights Templar & M. M. A. Assn., 126 N. Y. 450, cited by respondent’s counsel, is clearly distinguishable from the one at bar, in that the statute under which the physician’s certificate was filed (Tit. 12, chap. 519, Laws of 1870, as amended by subd. 5, § 10, tit. 12, chap. 181 of the Laws of 1885, p. 335) contains no provision whatsoever for making such certificate evidence of the facts therein set forth; but in the present case ample provision therefor has been made by the legislature, which, as may be pointed out in passing, has at all times power to make, modify and control the rules of evidence. Howard v. Moot, 64 N. Y. 262 ; People v. Cannon, 139 id. 32.

There is still a further and an important distinction to be drawn between said case and the present one; in the former the certificate was made by one who was not a public officer, while in this it was made by a judicial officer (See 1 R. S. [Banks Bros. 8th ed.] p. 390, § 49, art. 4, tit. 4, pt. 1), whose duty it was to inquire into and ascertain the matters set forth in his certificate; consequently the same should for all purposes of the case be viewed as a public document. Rice Ev. § 126, pp. 186,187.

For reasons similar to those last stated, the case of McKinley v. Metropolitan Life Ins. Co., 6 Misc, Rep. 9, is also distinguishable from the present one. It is manifest that the attention of the court was not called in that case to the consideration adverted to, and, therefore, the decision rendered is not supported by the case of Buffalo, etc., Co. v. Knights Templar, etc., Assn., supra, cited as sanctioning it.

I have examined the other cases cited by respondent’s counsel, but find that they are not in point.

It follows from these views that the exclusion of the paper writing in question was error, which to me appears to be so radical as of itself to necessitate a reversal of the judgment, and, therefore, it is not essential that we specifically consider other points urged by the appellant upon this appeal.

The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.

Bookstaveb, J.

I cannot concur in the conclusion of the learned judge who writes in this case as to the admissibility of the evidence tending to show the removal of a snowbank from the line of defendant’s road on the day after the accident. The ruling was doubtless based on Brennan v. Lachat, 14 Daly, 197, and was fully justified by that case. But Brennan v. Lachat was decided in 1887 and followed the rule apparently laid down in Dale v. D., L. & W. R. R. Co., 73 N. Y. 468. Since that time the Court of Appeals has distinctly held that such evidence is inadmissible to show negligence on the part of a defendant. Corcoran v. Village of Peekshill, 108 N. Y. 153; Clapper v. Town of Waterford, 131 id. 382. But the judge who writes in this case thinks the ruling may be sustained on the ground that it was admissible for the purpose of showing the exercise of authority or control over the place where the snowbank was. I do not think that it is necessary to decide that question in this case. It is true, as he states, that among the issues presented by the pleadings is the question whether the defendant caused the snowbank in question and permitted it to remain for such an unreasonable length of time that it became an obstruction in the street. But it was incumbent upon the plaintiff to offer such evidence as he had on that question in chief. The testimony objected to was offered in rebuttal. Besides the testimony offered was capable of various interpretations, and the necessary inference from it was not that the defendant caused the snowbank or had permitted it to remain an unreasonable length of time, while it was subject to the criticism well expressed in Corcoran v. Village of Peekshill, supra, that “ after an accident has happened it is ordinarily easy to see how it could have been avoided, and then for the first time it frequently happens that the owner receives his first intimation of a defective or dangerous condition of the machine or structure which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe and perfect condition or that the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe and secure. • While such evidence has no legitimate bearing* upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.”

The evidence shows that the track at the point of the accident was used but not owned by the defendant company; that it was the property of. the Forty-second street & Grand street Railroad Company and was leased to the defendant company under an agreement between the two, whereby the Forty-second Street Company assumed the duty and obligation of keeping the track in good repair and free from snow and ice. It also shows that the defendant company’s snowplow had been used on this portion of the track, and that by reason thereof the snow was thrown between the track and the sidewalk. Row, the corporation ordinance in force in 1881 (Art. 28, §§ 268-273) required the company making use of such snowplow to remove and carry away the snow so thrown up under certain penalties, and it was doubtless because of this that the snow was removed. The mere compliance with a corporation ■ ordinance should not be regarded as any evidence as to the exercise of dominion over that portion of the ' street, nor was it apparently offered for that purpose. Still it is not clear it did not tend to prejudice and influence the minds of the jury against the defendant." If it had been important for the plaintiff to show the exercise of dominion, or the right to exercise such dominion, it could have been accomplished by the introduction of evidence which could not have been misconstrued.

I, therefore, think that the admission of this testimony was erroneous and that the judgment should be reversed for this reason as well as for the error pointed out in the remaining portion of the opinion.

Bischoff, J.,, concurs.

Judgment reversed and new trial ordered,, with costs to abide event.  