
    WALLACE a. THE MAYOR, &c., OF NEW YORK.
    
      New York Common Pleas;
    
    
      General Term, July, 1859.
    Corporation.—Examination or Parties.—Highways.—Vindictive Damages.—New Trial.
    A corporation is a person living, within the provision of section 399 of the Code, allowing the conditional examination of a party where the adverse party, or person in interest, is living.
    
    A municipal corporation is bound to keep the streets, including the sidewalks, in repair, and is liable for injuries sustained in consequence of the neglect to do so.
    Although the corporation may, by ordinance, impose the duty of repairing sidewalks upon the adjoining owners, this does not relieve the corporation from the liability.
    In an action for damages for such injuries, instructing the jury that they must give exemplary damages if the corporation was guilty of gross negligence, is error for which a new trial should be granted, even though the verdict rendered was so moderate that it is doubtful whether the instruction had any injurious effect.
    Exemplary damages are only recoverable where the defendant’s act was wilful, or there was a deliberate, preconceived, or positive intention to injure, or a reckless disregard of the safety of persons or property.
    Application for a new trial.
    The facts appear in the opinion.
    
      
       Compare, The People on rel. Dayton, 27 Barb., 238.
    
   By the Court.—Daly, F. J.

The first question in this case is, whether the plaintiff conld be examined as witnessdy, his own behalf, in an action against the corporation of the city NewYork. By section 399 of the Code, the examination of a party as a witness on his own behalf, is conditional. It can be had where the adverse party, or person in interest, is living, unless the opposite party is the assignee, administrator, executor, or legal representative of a deceased person. It is objected that the defendants here are not, within the meaning of the section, a living party, but an artificial body created for certain political and governmental purposes, and that the effect of admitting the testimony of the plaintiff in this case, is to enable a party to put his own coloring upon the case, while the other party is, from the nature of things, excluded from rebutting that testimony. That the intention of the Legislature was to give each party an equal chance for placing the court in possession of the facts relied upon by him for complaint and defence; not to give one party an advantage over the other in that respect.

The defendants may, in my judgment, be regarded as a living party within the meaning of this section. The chief distinguishing attribute of a corporation is its power of continuous duration, unaffected by the death, incapacity, or change of its members. As Lord Coke expresses it, “ it is not subject to imbecilities or death of the natural body, for a corporation aggregate of many is invisible, immortal.” (Case of Sutton’s Hospital, 10 Coke R., 326.) It is calculated for and capable of duration forever, where no limitation is fixed by the act that creates it, though it may be brought to a termination by accident or by certain default of duty on the part of its members, at any period; but however long its duration, the corporation always continues the same, and the same rights, privileges, duties, and liabilities attach to it, as it had at the first moment of its creation, precisely as though it was an individual. (Grant on Corp., 3.)

It is so far considered to have a personality of its own, that the word person in statutes has often been construed to include corporations. (The Dean and Chapter of Busteel a. Clark, 1 Dyer, 83, b. 2 Coke's Inst., 722; Cortes a. Waterworks Company, 7 B. & C., 314; Boyd a. Congdon Railway Company, 4 Burg., N. C., 669; Albany Sentinel a. Newcastle, 5 Beav., 307; 1 Reeve's Hist. of the Eng. Law, 76,79.) It may sue or be sued; as it has this unbroken personality and power of perpetual succession, it may, without any violation of language, be referred to and embraced in a statutory designation of a living party. Bor will this construction have the effect of allowing one party to give testimony, while the other is necessarily excluded from rebutting, or defeat the intention of the Legislature by not giving each party an equal chance of testifying. The parties defendant to this action are the Mayor, Aldermen, and Commonalty of the city of Bew York, by their corporate name or title, who are, and always were, together with their officers and agents, competent witnesses in an action, in which the rights or liabilities of the corporation are in controversy. (Van Wormer a. The Mayor, &c., of Albany, 15 Wend., 262; Watertown a. Cowen, 4 Paige, 510 ; Ex. parte Kip, 1 Ib., 613; Falls a. Bellknapp, 1 Johns., 486; Corwin a. Harnes, 11 Ib., 76 ; Bloodgood a. Jamaica, 2 Ib., 285; Code, §398.) And this applies not merely to the members of municipal, but also to private corporations, the members or stockholders of which were formerly inadmissible as witnesses, by reason of their interest, a disqualification which no longer exists. The defendants, therefore, in this action, could avail themselves of every right that any other defendant could have, and even more, as they could all be examined as witnesses, whether the plaintiff offered himself as a witness or not.

The corporation are bound to keep the streets and avenues of of the city in such repair that they may be safely travelled, rvhen they are opened for public use, and if they negligently suffer them to get out of repair, they are liable for any injuries that may happen to persons through such negligence. (Hutson a. The Mayor, &c., of New York, 5 Seld., 163; The Mayor, &c., of New York a. Furze, 3 Hill, 612; The Rochester White Lead Company a. The City of Rochester, 3 Comst., 464.) The evidence was sufficient to warrant the jury in finding that the defendant was walking, at the time of the accident, through an avenue, open for public use. He was walking up the 11th avenue at 10 o’clock at night, when, at the corner of Slst-street, he pitched forward into a hole in the sidewalk, ten feet wide, seven feet across, and five feet deep, and was severely injured.

The corporation have provided by ordinance that the sidewalks shall be paved and kep>t in good repair by the owners, lessees, or occupants of the houses or lots fronting on any street or avenue under a certain penalty, and if they neglect to do so, it is to be done by the corporation at the expense of the owners, lessees, or occupants in the manner provided by the ordinance. Hpon complaint made to the street-commissioner he is to notify the owners, &c., and if they do not repair within a certain time, he is to have it done, if the expense does not exceed $250, and if it exceeds that sum, it is to be done by contract in the manner provided by ordinance. The sidewalk is a part of the public street, designed for the use of those who travel on foot, and though the corporation may impose upon the owners of lots fronting upon the streets or avenues, the burden of paving and keeping the sidewalks in repair, they do not thereby relieve themselves of the duty imposed upon them by charter and statute, of “ altering,” “ amending,” and “ keeping in repair,” the streets and highways within the city. (Kent’s Charter, 15, 99, 235, 237; Laws of 1813, ch. 86; 2 Rev. Laws, 407, § 175; Wilson a. The Mayor of New York, 1 Den., 601.) And if they suffer, as in this instance, a part of the public highway to remain out of repair in so exposed and dangerous a state that a passenger, without any negligence on his part, drops at night into a pitfall in the sidewalk and is injured, they must answer to the injured party for the damage occasioned by this negligence.

Their liability for the neglect of a duty like this, to keep the public streets in repair, which is imposed upon them by statute, is distinguishable from cases where the streets are obstructed by the acts of others: as in Suffer a. The Mayor, &c., of ¡New York (5 Seld., 457), where parties erecting buildings suffered piles of rubbish to incumber the street which led to the accident for which the corporation were sought to be made liable; or as in Levy a. The Mayor, &e. (1 Sandf., 465), in which they were sought to be made liable for an accident caused by swine running at large in the street; in which cases they could not be held liable for negligence, until they were notified or advised of the obstruction, and had neglected to cause it to be removed.

I think, however, that the instruction to the jury, that they might give exemplary damages if they thought that the corporation was guilty of gross negligence in suffering the hole to remain in the condition it was, was erroneous, and that the defendant was entitled to have the jury instructed as he requested, that the plaintiff could recover only for such damages as were the legitimate and direct result of the accident, and that he was not entitled to recover punitory or vindictive damages. For all that appeared in the evidence, the hole in the sidewalk may have been the work or act of a private individual in no connection with the corporation, and there was nothing in the evidence to show that the corporate authorities were notified of if, or had any knowledge of its existence. The recovery of punitory or vindictive damages is allowed only where the act cans ing the injury has been wilfully done; where the circumstances show that there was a deliberate, preconceived, or positive intention to injure, or that reckless disregard of the safety of persons or property which is equally culpable. The evidence in the case would not warrant the jury in forming any such conclusion as respects the corporation. It may be doubted if the instruction had any injurious effect, as the damages found by the jury were very, moderate under the circumstances. ' Still we cannot say that it had not, and are therefore, though reluctantly, compelled to order a new trial. 
      
       Present, Daly, F. J., Brady and Hilton, JJ.
     