
    Wilson v. City of Troy.
    
      (Supreme Court, General Term, Third Department.
    
    May 21, 1891.)
    1. Municipal Corporations—Defective Streets—Liability of Contractor.
    Laws N. Y. 1832, c. 51, § 6, authorizes the board of water commissioners of the city of Troy to make ordinances for the control of water in said city. One of said ordinances provides: “It shall not he lawful for any persons, except the said superintendent, and those employed by him or by the water commissioners, to tap or make any connection with the main or distributing pipes of said water-works, or to permit the same to be done, except as aforesaid. ” Employes of the superintendent of the water-works excavated a street for the purpose of making a connection with a main, on the application of the firm of contracting plumbers, and left an unprotected trench there, without a light, into which plaintiff's horse fell, at night, when being driven along the street. The workmen were paid by the city, and "the city reimbursed by the plumbers. Held, that the city was liable to the plaintiff for the injury thereby occasioned.
    ?. Damages—Excessive—Injury to Stallion.
    Plaintiff’s stallion was shown to be of the value of $5,000 before injury by defendant, and of the value of $250 thereafter. The stallion was kept for breeding purposes, and was shown to have been á fast horse, but," after the injury, to be stiffened across the shoulders and neck, and to become lame when speeded. Held, in the absence of testimony by defendant as to the amount of damages, that the sum of $4,761, of which $1,761 was interest from the date of the injury, awarded as damages, was not excessive.
    3. Interest—On Damages—Time of Injury.
    In an action ex delioto, the plaintiff may recover interest upon the damages sua tained, from the time of the injury up to the date of the recovery.
    4. Municipal Corporations—Claim against—Interest.
    Laws N. Y. 1872, c. 129, tit. 6, § 2, (charter of the city of Troy,) provides that no action shall be maintained against said city on a claim unless "it appears that the same was presented to the comptroller, and that he failed to audit it within 60 days after the presentment. Held, that no interest could be recovered on any such claim, except from the date of the presentment thereof.
    Appeal from circuit court, Rensselaer county.
    Action by Walter V. Wilson against the city of Troy. From a judgment in favor of the plaintiff, defendant appeals.
    Argued before Learned, P. J., and Landon, J.
    
      William J. Roche, for appellant. Levi Smith, (Orin Gambell, of counsel,) for respondent.
   Learned, P. J.

This is an appeal from a judgment on verdict in favor of plaintiff, and from an order denying a new trial. The action is to recover damages for injury to two horses occasioned on the evening of Hovember 18, 1879, by their falling into a ditch- in South street, in Troy, alleged to have been dug by the city authorities. On the trial, however, the litigation and the recovery were confined to one horse, the stallion. Mrs. Sleight was having a building repaired on the north side of South street. She employed Dodd & Ferguson, plumbers, to connect lier building by means of a lateral pipe with the water-main in the street. The water-works of Troy belong to the city. They are managed by a board of water commissioners. Laws 1832, c. 51, § 6; Laws 1855, c. 58. The commissioners can make ordinances and regulations for the use and control of the water. Section 6, Law last cited. By one of these ordinances it is declared: “It shall not be lawful for any person or persons, except the said superintendent and those employed by him or by the water commissioners, to tap or make any connection with the main or distributing pipes of said water-works, or to permit the same to be done, except as aforesaid. ” Dodds, one of the firm above-named, went to the superintendent or his clerk,-and told him that he wanted men to open the street and fill it up again at that place, for the purpose of putting the water into the house. Men were accordingly sent there by the water commissioners, or the superintendent, who were afterwards paid by the water commissioners for the work. Dodds & Ferguson paid the water commissioners. These laborers were accustomed to be sent all over the city by the water commissioners to dig trenches, and were paid by them; and Dodds & Ferguson knew, by their own experience, that the water-works commissioners always had such work done by their own men. Gray, who' was working for Dodds & Ferguson, pointed out to the men the place where the lateral pipe was to go, and after the ditch had been dug by them he put in the lateral pipe. The three men sent by the water commissioners began work in the morning, and dug a trench across the sidewalk, and to the center of the street, about 25 feet. The trench was from 2¿ to three feet wide, and 6 feet deep; the earth thrown on each side. The trench was also dug about 4 feet along the main and 2 feet wide, to give room to tap the main. The lateral pipe was laid in, and the trench was filled up from near the main to the fence. The part over the main, and some 4 feet north of the main, remained open; being, as one witness says, about 4 feet square and 5 or. 6"deep. The laborers quit work at 6, and put an old wooden saw-horse, three feet long and 2 feet high, along-side the ditch. No other barrier was placed,,and no lamp put there. On the same evening one Wilson, not the plaintiff, was driving a-team of horses up South street, and, as he testifies, the first thing he knew his horses had gone out of sight. They had fallen into the hole above described; the stallion first, and the other upon him. The night was very dark, and neither moon nor stars shining. With much difficulty the horses were extricated by the use of ropes, and by digging a trench towards the south. For the injury thus done to the stallion the recovery was had.

It seems to us plain that the ditch was dug by laborers in the employ of the city, and that the city must be liable for any negligence causing damage. The water commissioners properly would not allow the main to be tapped, except by their own workmen. They might have insisted that the person for whom the pipe was to be inserted should dig the ditch, and might have reserved to themselves only the making of the connection. But probably they found it to be convenient to do both; and at any rate they did adopt that course, and in this case did, as a matter of fact, dig this ditch, And.it was none the less their work, because Dodds & Ferguson afterwards paid them. Dodds & Ferguson did not control the workmen, but only pointed out the place where the lateral pipe was to be laid. The case of Pettengill v. City of Yonkers, 22 N. E. Rep. 1095, seems to apply directly to this ease, holding that the city was liable for negligent acts of the water commissioners, and also recognizing the duty of the city to guard and protect improvements, public or private, in a street, so as to prevent travelers from receiving injury. To the same effect is Turner v. City of Newburgh, 109 N. Y. 301, 16 N. E. Rep. 344; Russell v. Village of Canastota, 98 N. Y. 496. It hardly seems to need argument to show that a city which digs a pitfall in a street, and does not guard it, is liable for damages to a traveler who is injured thereby, (Ehrgott v. Mayor, etc., 96 N. Y. 265;) and certainly this ditch was not guarded, and was in the highest degree dangerous.

The defendant urges that, as the present value of the stallion was testified to be $250, the verdict could have been only $2,750. But the same witness who testified that the present value was $250 also testified that before the accident the value was $5,000. Therefore the verdict was not contrary to the ordinary rule of damages.

The defendant néxt insists that the damages were excessive. The stallion was kept for breeding purposes, and was shown to be a fast horse. Since the accident the proof shows that he is stiffened across the shoulders and back; that when speeded he becomes lame. Witnesses who had experience in the breeding of horses testified that they would not like to breed from a horse thus injured. There was no testimony as to the amount of the damages given by defendant, so that we may justly assume the correctness of that given by the plaintiff; and, from the account given of the accident, it is plain that the injury might have been very great. We cannot say, under the evidence, that the damages were excessive.

The complaint demanded judgment in respect to this horse for $3,000, and interest from the date of the verdict. The jury gave a verdict for $4,761, which was $3,000, and interest as above stated. It is urged by defendant that interest could not be allowed. The court had charged that the jury might allow interest, and the defendant excepted. On this question of the allowance of interest we think that many of the decisions, in actions of contract, do not give much light. But, even in an action of contract, where certain property was to be delivered at a certain time, it was held that, as a matter of law, the plaintiff was entitled to interest. Dana v. Fiedler, 12 N. Y. 40. So, in an action of trover for conversion, interest from the time of the conversion should be given. Andrews v. Durant, 18 N. Y. 496. This same rule is reaffirmed in McCormick v. Railroad Co., 49 N. Y. 303, at 315. The reason given is that interest is as necessary a part of a complete indemnity as the valué itself, and is not in the discretion of the jury. This was the doctrine, also, in Hyde v. Stone, 7 Wend. 354; Bissell v. Hopkins, 4 Cow. 53. Cow, evidently, the reason for this rule is that the injured person has been, from a certain time, deprived of property which was actually in his possession and enjoyment. To pay him back simply the value, several years afterwards, would not be an indemnity; for, if the property had not been taken from him, he would, during all the intervening time, have had the use and enjoyment of it; and this he has been deprived of by the wrongful act of the defendant. In White v. Miller, 78 N. Y. 393, there is a confliction of most of the recent cases; which, the court says, shows the uncertain state of the law. The cases cited are all actions on contract, as was that case itself. That case was a breach of warranty on the sale of cabbage seeds for some small price. It is quite possible that, if the recovery had only been for the price paid, interest on that price would have been allowed. But the damages allowed were the difference in value between a crop of cabbage raised from the seed sold, and a crop which would ordinarily have been raised from seed such as these were warranted to be; and the court held that interest on such damage could not be allowed. It will be seen, then, that the damages were in themselves speculative, and that no property in the plaintiff’s possession was taken away or injured. The court recognizes in that case the rule, as to trover and trespass de bonis asportatis, as above stated; that is, that interest is a matter of legal right in those cases. Yow, wtiat possible difference in principle can there be between a case where a defendant forcibly carries away my horse, and a case where he injures my horse so much that, it is valueless? If, by defendant’s violence, he breaks my horse’s legs, so that he is good for nothing, I have lost my property just as much as if defendant had stolen it; and, to compensate me, I ought to have interest on the damages done up to the time oí recovery. The wrong-doer ought not,, by delaying to compensate me, have the use of the money which should have compensated me at the time of the injury. In cases like the present the defendant is to blame, and the plaintiff is innocent, and the culpable defendant should make full compensation. He does not do so, unless he pays interest. The action in the present case is on the common-law liability for negligence. In Sargent v. Inhabitants of Hampden, 38 Me. 581, the action was on statute, and the decision rested on the language of the statute, which limited the recovery to “the amount of the damage sustained.”

The defendant urges that the plaintiff has been the possessor of the stallion ever since and has used it. But the jury have found that by this injury the value of the stallion was at once reduced by $3,000. That sum is not speculative, but actual, damages, accruing at the time of the injury. Let us suppose that by the accident the plaintiff’s wagon had been broken to pieces, but that one wheel remained uninjured. Would it be any answer to the claim for interest to say that the plaintiff has had the wheel ever since, and has made some use of it? We think not. The question of interest arose in a similar case to the present. Parrott v. Ice Co., 46 N. Y. 361. That was. an action for damages to a sloop, caused by a collision with a propeller. It was tried before a referee, and he allowed interest. The court said that in trover, replevin, and trespass interest is allowed for.the purpose of complete indemnity, and it was difficult to see why, on the same principle, interest on the value of property lost or destroyed, by the wrongful or negligent act of another, may not be included in the damages.. This is the doctrine of Sedgwick on Damages, (page 385.) In Reiss v. Steam Co., 12 N. Y. Supp. 557. the superior court, in an action for damages to personal property, held that the jury might give interest, but that the plaintiff was not entitled to interest as a matter of law. The case of Mairs v. Association, 89 N. Y. 498, relied upon in that case, was an act for damages to land by flooding the same. So was Walrath v. Redfleld, 18 N. Y. 457.

It is perhaps not necessary to hold in this case that the plaintiff is entitled' to interest as a matter of right, although we believe that to be the true rule in such cases. The court charged the jury: “You cannot go beyond $3,000, and the interest on that from the time,” etc. The defendant’s counsel requested the court to charge that no interest is allowable, citing White v. Miller. The court declined. The jury rendered a verdict for $3,000 and interest. Then the court said that the jury must compute the interest." They did so, and allowed, in all, $4,76l. Therefore the court left to the jury the question whether they would or would not allow interest, while the position, of the defendant was that the jury had no right to allow interest. But we do not see, as a matter of principle, why the allowance of interest in such a case is not a matter of right, for the purpose of complete indemnity, as much as it is in trover.

There is another question of some novelty in respect to interest. The charter of Troy (Laws 1872, c. 129, tit. 6, § 10) says that no action shall be-maintained in a case like the present, unless it shall appear that the claim was presented to the comptroller, and that the comptroller did not audit it' within 60 days. This accident happened November 19,1879. The claim was. presented April 5,1881. The action was commenced October 5,1885. Now, it is said that interest cannot be allowed from the time prior to the filing of the claim and the refusal to audit. We are of opinion that this is so. The-statute makes the presentation and the refusal to audit prerequisites to the-right of action; and it would seem reasonable that, in an action for damages for a tort, interest should not begin to run until the right of action has arisen. The language of this charter is not like that of chapter 572, Laws 1886. And this provision of the charter seems to be intended to provide that the city shall not be liable until the claim has been presented, and its comptroller has had time to examine and to determine whether or not to pay. In this view, no interest was recoverable from November 19, 1879, to June 3, 1881. Tliis view requires a deduction of $292 for the interest. With this deduction, the judgment is affirmed, without costs to either party.  