
    FRENCH v. VIX.
    
      N. Y. Court of Common Pleas, General Term ;
    
    
      February, 1893.
    1. Contract.] A contract for the erection of a building contained a stipulation by which the contractor agreed “ to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passerby during the performance of said work.”—Held, that itwas to be assumed that the person for whom the building was to be erected, only contracted on his own behalf and for his own security to relieve himself from any liability to others by reason of the work ; and that “ any neighbor or passerby,” who might be injured in the doing of the work, would have no right of action thereon, where they could not recover in an action, against the owner for the injury so done.
    2. Cause of action,] A third person who is injured by the negligence of a contractor cannot, upon the principle of avoiding circuity of action, maintain an action upon the agreement of , the contractor to indemnify the person for whom the work is being done from any injury to others occasioned thereby, where the work contracted for is notper se injurious and the party for whom it is done is not under any special or public duty to the person so injured ; since, in such a case the injured party has no right of action against the party who stipulated to be thus indemnified.
    
    3. Negligence.] Blasting is not per se injurious ; and one contracting to have it done is not liable for injuries caused by the negligence of the contractor in doing the work.
    
    Exceptions of defendant directed to be heard at the ■General Term in the first instance, after a verdict for plaintiff.
    The action was brought by Georgie French against Jacob Vix, George Vix, and Peter J. Dolan, to recover for the damage to plaintiff’s house by blasting carried on by •defendant’s upon adjoining premises.
    The further facts are fully stated in the opinion.
    
      Robert E. Deyo (Deyo, Duer & Bauerdorf, attorneys), for defendant.
    I. Blasting is not dangerous in itself and is not injurious to person or property unless conducted in an improper manner (Citing Herrington v. Lansingburg, 110 N. Y. 145; Pack v. Mayor, etc., 8 Id. 222 ; Kelly v. Mayor, etc., 11 Id. 432; Blake v. Ferris, 5 Id. 48; Brennan v. Gellick, N. Y. Law Journal, April 29, 1892).
    II. The cases holding a contractor with a municipality liable where he has agreed to be responsible for damages in doing the work have no application ; for the liability in such cases depend upon the rule that municipalities cannot by contract shift their duties (Citing Water Co. v. Ware, 16 Wall. 566; Storrs v. City of Utica, 17 N. Y. 104; Brusso v. City of Buffalo, 90 Id. 679).
    III. The complaint is drawn so as to allege that by tea-son of negligence the defendants Vix became liable under the stipulations in contract; the plaintiffs could not, therefore, recover on contract by mere proof of damages (citing Fisher v. Rankin, 27 State Rep. 582; Fromm v. Ide, 60 Hun, 322).
    IV. The defendants Vix had a right to show that the provision for indemnity in the contract for the work to be done by them was only for the benefit of the person for whom the work was being done (citing Coleman v. First Natl. Bank of Elmira, 53 N. Y. 388 ; McMaster v. Ins. Co. of North America, 55 Id. 222; Juillard v. Chaffee, 92 Id. 529).
    
      Wm. H. Arnoux (Williams & Vanderzee, attorneys), for plaintiff.
    I. The defendants Vix, under their agreement with the owner of the premises upon which the work was being done, were answerable for any damage that might be done the property of the plaintiff by reason of such work (citing Water Co. v. Ware, 16 Wallace, 566; McMahon v. Second Ave. R. R. Co., 75 N. Y. 231; Little v. Banks, 85 Id. 258 ; City of Lowell v. Spaulding, 4 Cush. 277 ; Payne v. Rogers, 2 H. Block, 350; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475).
    II. The agreement of the defendants Vix, although made with another, could be enforced by the plaintiff (citing Todd v. Weber, 95 N. Y. 181 ; Rector v. Teed, 121 Id. 583 ; Griffeth v. Cowegon, 105 Id. 222 ; s. c., 121 Id. 222 ; Grant v. Diebold Co., 45 Northwest. Rep. 951).
    III. Where a party blasts rocks and thereby injures neighboring property he is absolutely liable for the damage irrespective of any question of care or negligence, and a license from municipal authorities cannot affect the question of liability (citing Mairs v. Manhattan R. E. Asso., 89 N. Y. 498 ; Hay v. Cohoes Company, 2 Id. 159 ; Tremain v. Cohoes, Id. 163 ; St. Peter v. Dennison, 58 Id. 416 ; Jutte 
      v. Hughes, 67 Id, 267 ; Bermer v. Atlantic Dredging Co., 12 N. Y. Supp. 181 ; Hunter v. Farren, 34 Am. Rep. 423 ; s. c., 127 Mass. 481 ; Dodd v. Holme, 1 Ad. & El. 493; Howes v. Roberts, 7 El. & Bl. 625 ; Sherman & Red. on Neg. §§ 495, 497, 506).
    
      
       See note at the end of this case,
    
    
      
       Compare Brennan v. Schreiner, 28 Abb. N. C. 481.
    
   BOOKSTAVER, J.

This case was tried at Trial Term,, and resulted in a verdict in favor of the plaintiff for $2,500, whereupon the trial judge ordered the exceptions • to be heard at the General Term in the first instance.

On the trial it appeared that in May, 1889, the plaintiff was the owner of a house and lot on West Sixtieth, street, and that Nicholas Henry was the owner of a vacant' lot immediately adjoining on the west. In that month Henry entered into a contract with the defendants Vix for the erection of a building on his lot. This contract contained, among other things, the following clause: “ And the said parties of the second part (Vix) further agree to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passerby during the performance of said work.” It further appeared that the surface of Henry’s lot was covered with rock, and the defendants Vix made a sub-contract with the defendant Dolan, a blaster, to excavate the earth and rock, which contained the following provision : “ The said Dolan hereby assumes all responsibility for any loss or damage which may occur to person or property while he or his employees are engaged in the performance of such work, and hereby agrees to save the said Jacob Vix & Son harmless from the payment of any such loss.”

Dolan commenced to work about the 25th of May, 1889, and the first blast was on the 14th June in that year. In preparation for that blast, Dolan’s workmen drilled a row of six holes within five feet of the wall of plaintiff’s house, and two other rows, in all eighteen holes; this was done by machinery, and the holes were each.. eight feet deep and four feet apart, the rows being the same distance apart. When this blast was let off it caused the ceiling in the hall and in every room in plaintiff’s house to fall; the stoop was knocked down ; several stone banisters broken ; the heavy newel posts separated from the stoop ; the brown-stone under the stoop was knocked out of place ; also the iron door ; four of the beams holding the basement floor were split; the heavy iron sewer pipe was broken ; and other considerable damage done the building. After this the blasting continued, and other injury was done to plaintiff’s property.

To recover for these injuries this action was brought •against the Vixes and Dolan, the complaint alleging that Dolan was the agent for the Vixes, and that the Vixes, by their contract with Henry, had agreed to become and be accountable and personally responsible for any and •all damages that might or should be done to the adjoining property by reason of the prosecution of the work, •and that the rock was blasted in a negligent and unlawful manner, and that by reason thereof the damage was ■done.

The answer of the Vixes denied that Dolan was their agent, or that they had any control over or knowledge of the manner in which the work was done, and alleged that Dolan did the work as an independent contractor. He also interposed an answer, and was present on the trial and sworn as a witness, but took no other part in the trial of the action and was not represented by counsel.

On the trial the court held “that the stipulation in the agreement between Henry and the Vixes made the Vixes liable, upon the ground that they were substantially indemnitors, and that from the principle of avoiding circuity of action a person might act at once against the person ultimately liable.” The same view was taken on the motion to dismiss the complaint when the plaintiff rested. The court also held “ that no question of negligence or non-negligence is involved in the case,” and the jury was charged that “in any event you must find a verdict for the plaintiff,” and “ they (the Vixes) are held accountable, not because they did the injurious act, since, as I have already said, they did not do it, either themselves or by their own authorized agent or servant; and their liability constitutes a marked exception to the ordinary rule of law, which is that no man is responsible for an act which he did not do himself or by some agent or servant that he has constituted to do the act. The defendants Vix, therefore, are liable by virtue of an arbitrary rule of law, namely, having signed this stipulation by which they agreed with Mr. Henry, the owner of the lot upon which the blasting was to be done, to be ‘answerable and accountable’ for the damages, that therefore only the defendants are responsible.”

We think the ground assumed by the learned judge in this case at the Trial Term is untenable. If the Vixes were indemnitors, they were only such as to Mr. Henry, the only person with whom they contracted, as it must be assumed, from an inspection of the contract, that he only •contracted on his own behalf and for his own security, and to relieve himself from all liability to others by reason of any of the work done upon his premises. In fact, this was conceded by the court below, for the only circuity of action possible is that the plaintiff should first sue Henry, and, if she recovered, Henry might have an action over against the Vixes for the amount he was compelled to pay her. It follows that the plaintiff cannot recover against the Vixes unless she had a right of action against Henry. To hold otherwise is to say that the stipulation in the contract was inserted by Henry, not to protect him from •claims which he supposed could be enforced against him, but so that “ any neighbor or passer-by ” might have a right of action against the Vixes in cases where such persons could not have a right of action against him, and this irrespective of the question of whether the damage was lawfully or unlawfully done, for the clause is not restricted. The question, then, resolves itself into this: Were the acts complained of such as would authorize a recovery against Henry, provided the work had been done by the Vixes themselves under the contract they had made with Henry? In other words, would Henry be protected from liability under the rule of respondeat superior ? This, in turn, depends upon the answer to another question : Did the damage necessarily result from the nature of the work itself, or did it result from the manner in which the work was performed ? If the work done was bound to produce the result, the person for whose benefit the work is done cannot shield himself by showing that the work was done by an independent contractor (Dorrity v. Rapp, 72 N. Y. 307). But, if it resulted from the method in which .the work was done, the person benefited having no control over such method, or of the persons pursuing it, then the contractor is solely liable. These are elementary principles, and so firmly established that they need no citation of authority to sustain them.

It remains, then, to be determined whether work of which blasting forms an essential part is dangerous in itself, or whether it is devoid of danger unless improper methods are used in the employment of it. The tendency of courts in this State at first was toward the view that it was inherently dangerous, and that a person employing another to do such work would be responsible for injuries arising therefrom without showing'negligence on his part. But the later decisions all tend to hold that blasting is not dangerous in itself, and we think that view is now firmly established by the courts of this State (Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, etc., 8 Id. 222 ; Kelly v. Mayor, etc., 11 Id. 432 ; Herrington v. Lansingburg, no Id. 145). In the latter case the facts were that defendant entered into a contract for the construction of a sewer in one of the streets. The contract provided that all damage done in the construction should be paid by the •contractors; plaintiff’s team, which was standing in a . street crossing the one in which the sewer was being constructed, was frightened by the noise of a blast fired by the contractors in the prosecution of the work, and while attempting to control the horses, plaintiff was injured; held, that the defendant was not liable, that if there was any culpable negligence which caused the injury, it was that of the contractors, and they alone were responsible: and Judge Earl, in the course of the opinion, says: The accident was in no way caused by any imperfectaondition of the street, but simply by noise resulting from the blast. If there was any culpable carelessness which caused the injury to the plaintiff, it was that of the contractors. They had entire control of the work and the manner of its performance. They could choose their own time for firing the blast, and select their own agents and instrumentalities. They could make the charges of powder large or small, and they could in some degree smother the blasts so as to prevent falling rocks, and much of the noise of the explosion ; or they could carelessly omit all precautions, and for the consequences of their negligence they alone would be responsible. If it was a prudent thing to notify persons in the vicinity of the blast before it was fired, then the contractors should have given notice; but the duty to give it did not devolve upon the village, and for these conclusions, the cases of Pack v. Mayor (8 N. Y. 222), Kelly v. Mayor (11 Id. 432) and McCafferty v. Spuyten Duyvil, etc., R. R. Co. (61 Id. 178) are ample authority.

“ It is conceded by the learned counsel for the plaintiff that if the plaintiff had been hit by a fragment of rock thrown by the blast, the defendant would not have been and the contractors would alone have been responsible. So too, if a fragment of rock had struck one of the horses or had fallen or passed near them and this had frightened them, causing the injury to the plaintiff, within the authorities cited, the defendant would not have been responsible. ... A rule which would cast responsibility upon the defendant for injuries resulting from the noise of the explosion and exempt it from responsibility for injuries caused by fragments of rock thrown by the explosion, would rest upon no rational basis, and require distinctions too fine for the practical administration of justice.” See, also, Brennan v. Gellick, N. Y. Law Journal, April 29, 1892.

Those authorities all establish that blasting rock does not necessarily cause injury, and that damage arising therefrom is solely the result of employing it negligently, and that when the work is done by an independent contractor, he only is responsible for such damage. In other words it seems to be the settled law of the courts of this State that they will take judicial notice that blasting is mot injurious to persons or property per se or unless conducted in a negligent manner.

That it was negligently done in this case by the subcontractor, Dolan, is apparent from the number, depth and proximity of the holes drilled to each other and to plaintiff’s premises and their simultaneous discharge. The force ■developed must have been terrific, and one is not surprised at the injuries resulting to plaintiff’s premises. But all these matters were under the control of the sub-contractor, Dolan, and not of Henry, or even the Vixes.

The court below in its rulings followed Water Co. v. Ware (16 Wall. 566), where many of the facts were similar to those now under consideration. But this case was decided on a principle which cannot be applied to the contract of a private person. It held that where a water company had agreed with a municipal corporation to be responsible for damages while laying water pipes in the street, a party injured by the negligence of those doing the work couldrecover against the water company. The water company was held liable in a suit by the person injured, because the municipality was also liable, on the ground that, being charged with the control of the streets, they must keep them in a safe condition for travel; that the agreement with the water company would not acquit the municipality of an obligation otherwise attaching, to keep the streets safe and convenient for travelers ; and that the person injured might sue the water company because it might well be held that a party injured through a defect or want of repair in such a street, occasioned by the neglect ■or carelessness of such a contractor in doing the work, or of those for whose acts he is responsible, may, at his election, sue the contractor for redress, or pursue his remedy .against the municipality, as it is clear that the contractor, in case of a recovery against the latter would be answer■able to the municipality as stated in his agreement.

This is a very different case from the one at bar. In this case Henry, for whose benefit the work was done, did not owe any duty to third persons in reference to it unless he undertook to do it himself as shown by the cases before cited, but the City of St. Paul as a municipality was charged with the duty of keeping its streets safe for those using them, and it did not have the power to make a contract by which others assumed to perform a part of the functions imposed upon it by law, so as to relieve it, but .as the city had been indemnified against damage caused by those who so assumed, the person injured could sue the indemnitor direct, for, if the suit was brought against the city, and a recovery had, the city could in turn recover the amount from its indemnitor. But this would involve two suits, whereas the same object could be accomplished without prejudice to the indemnitor in one suit brought by the person injured against the contractor direct, thus avoiding circuity of action. The rule that municipalities cannot by contract shift the duties imposed upon them by statute upon those assuming to contract with them for that purpose, is fully recognized in this State (Storrs v. City of Utica, 17 N. Y. 104, cited in Water Co. v. Ware; Brusso v. Buffalo, 90 Id. 679). The head-note in Water Company v. Ware (supra) is misleading. It seems to assert the broad proposition that in all cases where indemnity "has been given, the indemnitor may be pursued in the first instance by a person injured ; which, as before shown, was not decided by the court, but is authority only for the proposition that when a contractor is engaged in performing the work in which an injury is done for which the-person or corporation with whom he contracted is liable, then if the contractor has indemnified such person or corporation, the person injured may sue the contractor direct on the principle of avoiding circuity of action.

But the cases we have before cited from the highest court of this State are abundant authority for holding that where the accident is caused by blasting, there would be no liability even of a municipality, and a fortiori there could be no liability of a person not charged with a special duty, always assuming that the work was done by an independent contractor. It follows that to sustain the rulings of the court below it must be held that the Vixes are liable to the plaintiff in a case where the owner could not be held responsible by her. Such liability existing, not by virtue of anything inherent in the nature of the work, but solely by reason of a stipulation between the owner and the contractor, to which she was not privy and concerning which it does not appear that she had any knowledge before the damage was done. It is self-evident that if the work was such that Henry would not be liable if performed by his contractor, then the same rule would protect the Vixes on their sub-contract where a similar' provision was inserted in their contract with Dolan who did the work as an independent sub-contractor (Slater v. Mersereau, 64 N. Y. 138).

The case of Storrs v. City of Utica (supra) is the only one-in any way in conflict with the foregoing reasoning, and that we think, has been entirely overruled or greatly modified by the court of appeals in Charlock v. Freel (125 N. Y. 357). But assuming that Water Co. v. Ware does establish that Henry was liable to the plaintiff, and that she could, therefore, sue the Vixes direct, because liable over to Henry, still the plaintiff ought not to succeed here, for she did not bring herself within the conditions laid down in that case. There the gravamen of the action was negligence, and the fact that the jury found that there was negligence, permeates the whole opinion. Here, although the plaintiff had alleged that the Vixes were liable solely because of negligence, the court expressly held that she was entitled to recover without showing such negligence..

The plaintiff’s theory that the defendant’s are insurers has no countenance from Water Co. v. Ware (supra). If the defendants were insurers of Mrs. French, then she was insured as to her own property without her knowledge, by Henry, who did not act as her agent, and who had no insurable interest of his own in her property. A contract of insurance by a person having no interest would be void as a wager policy. Again, no consideration was paid by Henry to the Vixes for the insurance of Mrs. French. All that he desired was to have a building erected in accordance with the specifications, and to be secured from any damages either in contesting or otherwise disposing of any claim for damages arising out of the work. The consideration paid by him to the Vixes was for this, and nothing more. The preceding part of the contract, in which the stipulation under consideration occurs, shows that the only person sought to be protected by that contract was Henry himself; his sole aim was that he should not be called upon to pay such damages, and the Vixes did not, by that contract, estop themselves from asserting that a claim was not valid against them on the ground that Henry could not be compelled to pay if Mrs. French sued him.

Plaintiff also claims that in McMahon v. Second Avenue R. R. Co. (75 N. Y. 231), the defendant was held liable under a contract. We think the learned counsel has fallen into an error in respect to this case. The defendant was sued in negligence. A contract was offered in evidence, and it was proved that the defendant had been negligent in the discharge of its duties under that contract; and so the court held that : “ The reception of the agreement in evidence did not change the cause of action from one arising in tort to one based upon contract.” In the case under consideration the recovery was had on the contract alone, without proof of negligence thereunder, although the complaint alleged that the cause of action arose through negligence under a contract.

Little v. Banks (85 N. Y. 258), cited by the learned ■counsel for the plaintiff, is not in point in this case. There the contract was made by a State officer with a bookseller, and the point of the decision was that the action could be maintained by Little on a contract made between Banks and the State, where the officers enter into it for the advantage and welfare of the public, and where such a provision constitutes a material portion of the agreement which is essential to carry it into effect. The contract between Henry and the Vixes was not made hy Henry as a public officer for the welfare of the public, but as a private individual, for his own benefit, and the stipulation as to damages was not a material portion of the agreement which is essential to carry it into effect.

In Todd v. Weber (95 N. Y. 181) the foundation of the liability was that “ The natural obligation arising out of hfs relation to the child is a sufficient consideration for a contract on his part to pay for its support and maintenance.” But Henry owed no obligation to the plaintiff, or any other “ neighbor or passer-by,” and nothing in Henry’s relations with the plaintiff constituted a consideration as between them that entitled her to any benefit in the stipulation. Besides, in Todd v. Weber, the promise was made to do a specific thing for a specific person. But the stipulation in the .case at bar is for the benefit of Henry alone, or else must be for the benefit of the whole world.

In Rector of St. Mark’s Church v. Teed (120 N. Y. 583) there was a promise on consideration to pay a specific sum to a specific person. The court says: “ A party for whose benefit a promise was made may sue in assumpsit thereon, even if the consideration therefor arose between the promisor and a third person.” But in this case, as far as we can perceive, there was no consideration from Henry to the Vixes for a stipulation inuring to the benefit of third persons. Henry wanted a house built and he agreed with the Vixes to pay a Certain sum for having it built ; that sum was the consideration for the building of the house, and incidentally to save Henry harmless from any claim in connection therewith. In Vrooman v. Turner (69 N. Y. 280) the rule is laid down : “To enable a third party to enforce a promise there must be privity by substitution between the parties, or some prior right or claim against one of the contracting parties, by which he had a legal interest in the performance of the agreement.”

We, therefore, think that the court erred in withdrawing the question of negligence from the jury and in holding that without any proof of such negligence the Vixes were liable. The verdict of the jury should, therefore, be set aside and a new trial ordered, with costs to the defendants Vix to abide the event.

DALY, Ch. J., and BlSCHOFF, J., concurred.

Note on the Election between remedies for Indemnity, by Assignment, Subrogation, Express Contract, and Implied Assumpsit.

The question now frequently arises whether one who has suffered by being held liable for the tort or breach of contract of another should seek his remedy over by an action founded on an express promise of indemnity, if such there was,.or on the implied assumpsit raised by his payment of the obligation of the other, or upon the theory of subrogation.

The two cases in the text point to some interesting quesiotis in this regard which it is not easy to answer on authority in the present state of the law.

For instance, when a municipal corporation is held liable in damages for injuries caused by the negligence or nuisance of a property owner, and after paying the judgment seeks to recover over against the property owner who was the actual wrong-doer, is the action on an implied contract to indemnify for money paid, or is it an action of tort for the neglect ■or nuisance in which the money paid is only the measure of ■damages.

Much the same question arises in a great variety of cases turning on the rights of insurers, the rights of sureties, ■and of indemnitees, and wherever a wrong-doer by misadventure seeks reimbursement from the person under whose ■apparent authority he acted in good faith.

In some cases the claimant may have taken an assignment of the demand he has paid. In other cases he may •claim on the theory of subrogation, which is a sort of as■signment by operation of equity. In other cases he may have an express contract of indemnity, or an implied assumpsit to rest upon, and yet perhaps may have an election to proceed on the theory of subrogation.

The origin of the procedure on these several theories throws some light on the perplexing questions and the conflicting authorities here involved.

As the doctrine of subrogation has grown up out of the doctrine of assignment of causes of action, and has progressed in much the same way in which this latter doctrine ■did, it will be convenient to trace this latter first.

assignee’s right of action.

From the earliest periods of English law down till after the time of Lord Coke, courts of common law would not recognize an assignment of a right of action as having any effect as against the debtor, nor as having any effect as against the assignor unless with his co-operation or acquiescence. The assignee had no standing in court (case i) Sir Frederick Pollock, in Principles of Contract, 207, note e, speaking of that period, says, “ The assignee suing in his own name .... was never attempted so far as I can find.” The assignor could sue notwithstanding his assignment. The court would allow the assignor to sue voluntarily for the benefit of his assignee ; but the assignor could not be compelled to do so. In Lord Coke’s time the rule was so universal that he attributed it to the policy of the law in discouraging ligitation, on the idea that if the original owner of a demand chose not to sue, it would be mischievous to allow another to buy the right to sue. Whether this was the origin of the rule or not, his statement confirms, what other authorities indicate, viz., that whether suit could be brought on an assigned demand depended on the will of the assignor.

Notwithstanding this, chancery began to recognize assignments, and to enforce them as between the parties, and as against the debtor.

If the right of action was one on which the assignor couid sue at law in his own name, chancery would on the complaint of the assignee enjoin the assignor from suing for his own benefit, and would if necessary compel him to sue for the benefit of the assignee, on receiving indemnity against costs.

When this equitable practice was fully established, the •courts of law could no longer resist such assignments.

The next step was for the courts of law, without awaiting compulsion from chancery, to allow the assignee even without the consent or against the objection of the assignor to sue in the name of the assignor.

Chancery, however, refuses to entertain an assignee’s bill to invoke its interposition merely because of his being an assignee ; for he thus has an adequate remedy at law in the assignor’s name (case 2).

Thus the old common-law doctrine that the assignment was void at law remained theoretically respected ; but the equitable principle was effectuated at common law by the fiction of a suit by one to the use of the other ; and thus '“Law” first submitted to “Equity,” then imitated it, and at last superseded its function.

A curious relic of the device by which law took over to itself this equity power remains (in New York and a few •other States) in the invalidity of a deed of lahd made while the land is held adversely to the grantor. 2 R. S. 739 (4 Id. 8 ed. 2453) § 147. Such a deed is merely an assignment of a right of action, and the taking of it may be a misdemeanor [Pen. Code, §§ 129, 130).

But, by another statute, the grantee may nevertheless use the grantor’s name in bringing suit to recover possession [Code Civ. Pro. § 1501).

The result then was that by our law down to the time of the abolition of chancery and the adoption of the New Procedure, an assignee of a right of action could sue at law only in the name of his assignor. This restriction in the case of land was imposed by statute, in the case of other rights of action, by the ancient common law. The New Procedure declared that actions must be brought in the name of tlie real party in interest [Code Civ. Pro. § 449). This was at once regarded as abrogating the common law rule that an ■assignee of a personal right could not sue in his own name ; but it did not repeal the statute that a grantee of land held adversely could not do so.

The history of these changes may be recapitulated in outline thus :

I. An assignee of a right of action liad no right.

II. Chancery recognized the injustice of allowing the assignor to sue for his own benefit after he had assigned the claim ; and interposed at suit of the assignee to compel the assignor to sue, or to allow suit in his name, for the use of the assignee, on being indemnified against costs.

III. Law courts gave the assignee a right to sue in the

assignor’s name without his leave and made the assignee liable for costs in place of the nominal plaintiff the assignor.

IV. The New Procedure required the real party in inter-

est to sue in his own name, except in case of ejectment, Where the unrepealed statute required him to sue in the grantor’s name.

SUBROGATION.

The progress made by the law in borrowing the function of equity in respect to subrogation has been less marked, and has not reached the same stage of completion ; but it may be plainly traced up to the point, where, if it now stops, it will leave the subject in embarrassing doubt.

At first, subrogation was purely an equitable remedy not to be claimed at law. So late as 1841 the supreme court of this State, after having given judgment against the maker and several indorsers of negotiable paper, refused tO’ allow the last indorser upon his paying the execution against himself to issue execution against the prior parties on the note who were liable to him. And the decision was put on the ground that he must apply to chancery to be substituted (Ontario Bk. v. Walker, 1 Hill, 652).

But the courts of law had long previous begun to sustain actions founded on the doctrine of subrogation, or, what is nearly equivalent, an equitable assignment of the claim in cases where the claim itself was cognizable at law (cases 5, 6, 8):

The advance made thus in various ways toward the-recognition of subrogation to a cause of action at law as a legal right, is well indicated by Judge Lowell in The Tangier, 2 Low. 7 (1871), where ship chandlers who advanced money to pay the crew libeled the vessel and claimed to prevail on the ground that admiralty would subrogate them’ to the lien which the crew had. The judge criticised the notion suggested in the case of The Larch, 2 Curt. C. C. 427, to the effect that on payment there could be no subrogation unless there be an actual outstanding legal title, saying, “ if that is the meaning of the decision its adoption would make sad havoc with subrogation. ” And after tracing the notion to its source in Copis v. Middleton (case 7), I Turn. & R. 224, in England, (where, moreover, it has been superseded by statute 19 & 20 Vic. c. 97, §5) he adds, “ The courts of law, equity and admiralty, each in its own mode, all recognize subrogation to liens and privileges, in a. great variety of circumstances.” . . .

In the case of The Sarah J. Weed, 2 Low. 555 (1877), the same judge said : “ Subrogation is an equitable assignment operated -by the law itself when justice requires it adding that the rule, although it could be invoked by a. surety who had paid the debt of his principal, had not been extended to a mere agent.

Hence the better view is that a court of law may deal with subrogation as they may with assignment, and that when the right of action to which a plaintiff asks to be subrogated is a legal right of action, a court of law may treat a plaintiff who is entitled in equity to subrogation as an assignee, and allow him to maintain an action of a legal nature upon the right to which he claims to be subrogated.

The doctrine of subrogation, however, is broader than that of equitable or implied assignment in two respects ; it is applied notwithstanding an absolute refusal to assign (case 3«); and it is applied to claims for personal injuries,, which are not in their nature assignable (cases 8, 11).

The breadth of the principle is well indicated in Castellain v. Preston (L. R. 11 Q. B. D. 381, 386 ; followed by Porter on Ins. 228), where Lord Esher, in determining an insurance case, described the doctrine of subrogation thus : As between the insurer and the insured, the insurer is entitled to the advantage of every right of the insured, whether such right consists in contract fulfilled or unfulfilled, or in remedy for tort capable of being insisted upon, or in any other right, whether by way of condition or otherwise, which can be or has been exercised or has accrued ; and whether such right could or could not be enforced by the insurer in the name of the insured by the exercise or acquiring of which right or condition the loss against which the assured is insured can be or has been diminished. That seems to put the doctrine of subrogation in its largest possible form ; and if in that form, large as it is, it is short of fulfilling that which is the fundamental condition, I must have omitted to state something which ought to have been stated.”

When the common law first adopted the doctrine of subrogation it was held that the party asking subrogation could not sue at law in his own right. But an action for his benefit could be maintained in the name of the original claimant (cases 3, 4, 5).

And now, under the New Procedure, the way is just as open for the courts to allow one claiming subrogation to a legal cause of action to sue at law in his own name, because he is the real party in interest, as it was to allow an assignee to sue in his own name on the same ground.

Of course, if the cause of action to which he claims to be subrogated is an equitable one, he must sue in equity, and then, of course, can sue in his own name.

INDEMNITY.

By reference to the cases stated in the note below (cases 11-34) it will be seen that the rule against contribution or indemnity between wrong-doers does not prevent a merely constructive wrong-doer from recovering against the actual wrong-doer. But there is not harmony on the question whether the remedy in the absence of express contract is founded on subrogation to a cause of action for tort, or implied assumpsit, or, as seems implied in some cases, tort to plaintiff with special damages in rendering him liable to •a third person.

The best considered recent case (11), without excluding the other grounds of liability, supports the theory of subrogation as a sound one.

IMPLIED ASSUMPSIT.

The courts of law having come to recognize the obvious duty of sureties to contribute equally, and of principals to indemnify sureties, even where there was no actual promise to do so, entertained actions for such relief by introducing the fiction of an implied promise raised either by the relation the parties entered into at the time of contracting, or by the payment of money, by one in exoneration of the other.

Graysthorne v. Swinburne, 14 Ves. Jr. 160, 164 (followed by De Golyar on Guar. 308) well stated the theory of the two courts. . . . “the surety has a right in this court [Chancery] either upon a principle of equity or upon contract, to call upon his co-surety for contribution, and I think that right is properly enough stated as depending rather upon a principle of equity than upon contract, unless in this sense, that the principle of equity, being in its operation established, a contract may be inferred upon the implied knowledge of that principle by all persons, and it must be upon such a ground of implied assumpsit that in modern times courts of law have assumed a jurisdiction upon this subject—a jurisdiction convenient enough in a case simple and uncomplicated, but attended with great difficulty where the sureties are numerous.”

At law tlie general rule is that a surety relying on the implied legal obligation to indemnify, cannot call on the principal till he has paid the debt either in cash or in what lias been accepted as equivalent—e.g., his own note. His ■own imprisonment on the judgment against him, has been held not enough.

But if there be an express promise to indemnify he may recover in a suit at law his actual damages, though they would usually be only nominal unless be had paid something.

Where, however, a surety actually pays either in cash or by his note accepted as payment, in satisfaction of the demand against the principal, a new and distinct cause of action for money paid to his use, then, first arises (Rodman v. Hedden, 10 Wend. 498).

The implied promise to contribute is implied by law notwithstanding the evidence repels the -idea that any promise was made. “ When it was settled that courts of law would enforce contribution between sureties, what was before only an equitable, became a legal obligation ; and where there is a legal right to demand a sum of money, and there is no other remedy, the law will imply a promise of payment ” (Bronson, J., Norton v. Coons, 3 Den. 130 ; ail’d in 6 N. Y. 33).

If two or more bind themselves jointly, as sureties, the law implies reciprocal promises then made to contribute.

Hence, if it be after death of one that the breach by the principal first renders the obligation absolute, and the survivor pays, he can sue the executors of the deceased,—not on the common counts for money paid to their use,—but in a special assumpsit on the reciprocal promises implied by law, which promises, should (at common law) be alleged in the declaration (Bradley v. Burwell, 3 Den. 61 ; Johnston v. Harvey, 84 N. Y. 363, 365).

ELECTION BETWEEN THE DIFFERENT THEORIES.

The bearing of these views on the questions of limitation of actions, mode of trial, form of pleading, effect of discharge in bankruptcy, and the right of provisional remedies is obvious.

It seems the better opinion that these various theories are not alternative and mutually exclusive causes of action, compelling election ; but rather concurrent grounds or theories of liability for seeking relief upon one and the same grievance.

Notes of Cases.

I. Assignments.

II. Subrogation.

III. Indemnity.

IV. Implied assumpsit.

I. Assignments.

1. Hil. 37, Hen. VI. 13, pi. 3 (A, D. 1460). An assignment of debts being void vested nothing in the assignee ; and if he had given a bond for the price of them, chancery would decree it to be given up to him and cancelled ; for the assignment was not quid pro quo.

2. Hayward v. Andrews, 106 U. S. 672. Held, that if the assignee of a chose in action is unable to assert in a court of law the legal right of the assignor, which in equity is vested in him, then the jurisdiction of a court of chancery may be invoked, because it is the proper forum for the enforcement of equitable interests, and because there is no adequate remedy at law ; but when, on the other hand, the equitable title is not involved in the litigation, and the remedy is sought merely for the purpose of enforcing the legal right of his assignor, there is no ground for an appeal to equity, because by an action at law in the name of the assignor, the disputed right may be perfectly vindicated, and the wrong done by the denial of it fully redressed. To hold otherwise would be to enlarge the jurisdiction of courts of equity to an extent the limits of which could not be recognized, and that in cases where the only matters in controversy would be purely legal rights. (Criticising Story Eq. Jur., section 1057 a, and citing Hammond v. Messenger, 9 Sim. 327-332.; Walker v. Brooks, 125 Mass. 241, and cases there cited ; Thompson v. Railroad Companies, 6 Wall. 134 ; Walker v. Dreville, 12 Wall. 440; Van Norden v. Morton, 99 U. S. 378, 380; Hurt v. Hollingsworth, 100 U. S. 100, 103).

II. Subrogation.

3. Contract.] Hall v. Railroad Companies, 13 Wall. 367 (1871).. An insurer of goods consumed and totally destroyed by accidental fire in course of transportation by a common carrier, is entitled, after he has paid the loss, to recover what he has paid, by suit in the name of the assured against the carrier; it is not necessary in order to sustain such a suit, to show any positive wrongful act by the carrier.

The court say : “In respect to the ownership of the goods and the risk incident thereto, the owner and the insurer are considered but one person, having together the beneficial right to the indemnity due from the carrier for a breach of his contract, or for nonperformance of his legal duty. Standing thus as the insurer ■does, practically, in the position of a surety, stipulating that the goods shall not be lost or injured in consequence of the peril insured against, whenever he has indemnified the owner for the loss, he is entitled to all means of indemnity which the satisfied owner held against the party primarily liable. His right rests upon familiar principles of equity. It is the doctrine of subrogation, dependent not at all upon the privity of contract, but worked out through the right of the creditor or owner.

3a. See also Hart v. Western R. R. Co., 13 Metc. 99.

4. The insurer (except perhaps on marine insurance where there is abandonment) cannot sue at law in his own name. The suit for his benefit must at common-law be in the name of the insured. London Assurance Co. v. Sainsbury, 3 Dougl. 245 (1782); Peoria Marine Ins. Co. v. Frost, 37 Ill. 333 (1865); Rockingham Mut. F. Ins. Co. v. Bosher, 39 Me. 253 (1855).

5. Mason v. Sainsbury, 3 Dougl. 61 (1782),—Held, that payment of a loss by insurers, if made without prejudice, did not prevent an action by the insured against the persons primarily liable for the loss,—in this case the hundred, made liable by statute for injury caused by a mob—it appearing that the insured sued for the benefit ■of the insurers.

6. In 1831 the supreme court of N. Y. in sustaining a recovery against an indorser, notwithstanding a defense that the creditor had refused to allow the indorser the use of his, the creditor’s, remedies against the maker, by saying that the equitable principle is that the surety must indemnify the creditor for the costs, etc., to which the use of his name may expose him ; and if chancery would not compel subrogation without indemnity, defendant ought in this case to have offered indemnity. Beardsley v. Warner, 6 Wend. 610, 614 ; .aff’d in 8 Id. 194.

7. In Copis v. Middleton, 1 Turn. & R. 224 (1823) Lord Eldon went on the principle that if a surety on a bond pays it he is not a bond creditor of the principal, but only a simple contract creditor. If the surety desired to be a specialty creditor (where there are no collateral sealed securities to be enforced) he should either take a counter bond when he signs, or he should take an assignment of the bond when he pays.

This doctrine that by payment the bond is gone, is now rejected.

8. In Connecticut Mut. Life Ins. Co.v. New York & N. H. R. R. Co., 25 Conn. 265 (an action by the life insurance company, who had paid a death loss, to recover from the railroad company, whose negligence caused the death, the sum they had paid) it was held, that the principle upon which in any case an insurer is permitted to recover against a party, whose wrongful act has caused the loss which the insurer has been compelled to pay, is not based upon the idea'of a direct legal right of the insurer against the wrong-doer, but upon the equitable doctrine of subrogation, under which such insurer succeeds to, and is entitled to a cession of all the means of redress held by the party indemnified, against the party whose act has occasioned the loss. And the insurer can enforce this right only in the name of the insured.

9. Alford v. Cobb. 28 Hun, 22. Plaintiff purchased certain property of defendant and was obliged to pay off a mechanic’s lien upon it in order to prevent its seizure. Held, that plaintiff’s right of action by subrogation against defendant to recover the money so paid was a cause of action upon contract within the meaning of Code Civ. Pro. § 635, authorizing an attachment to issue where the action is to recover a sum of money for the breach of a contract, express or implied, other than a contract to marry.

10. Compare Webster v. Brown, 2 S. C. 428 ; Fraley v. March, 68 N. C. 160; Neal v. Nash, 23 Ohio St. 483.

III. Indemnity.

1 r. Theory of suirogaiiott preferred.\ City of Rochester v. Campbell, 123 N. Y. 405 ; s. c., 34 State Rep. 77 ; rev’g 55 Hun, 138. A municipal corporation cannot maintain an action against an abutting owner to recover damages ■ it has been compelled to pay for injuries occasioned by a defective highway or sidewalk in front of defendant’s premises, unless the person injured could have recovered against the abutting owners. Ruger, Ch. J., says : “ The theory upon which actions have heretofore generally been sustained in favor of municipal corporations against wrong-doers, for damages which they have been compelled to pay individuals injured through defects or obstructions in streets and highways, is that such corporations have succeeded in some way, to the remedies of the injured party against the wrong-doer. Recoveries have been allowed in such cases only where the wrong-doer is responsible generally to all who are injured by his act, and when corporations have been compelled to pay damages for a wrongful act perpetrated by another in public highways,, they become entitled to maintain the action against such persons for indemnity, from the liability which the wrongful act of the tort feasor has brought upon them. In other words, the municipality, by payment, becomes practically subrogated to the cause of action against the tort feasor which the injured party originally had, and it can recover against such tort feasor only by proving the injury ; the negligence of the defendant; the extent of the damages and the fact of payment by it.”

12. Contra.] Kreider v. Isenbice, 123 Ind. 10. An action by a surety to establish his suretyship and to be subrogated to the rights of the person indemnified in a judgment against the principal, which the surety has satisfied, is not an action upon the instrument which the surety has signed for his principal, but is upon the implied promise of the principal to indemnify him, and is barred by R. S. 1881, § 292, which requires all actions on accounts and contracts not in wilting to be brought within six years after the cause of action accrues. S. P., Dewitt v. Boring, Id. 4.

13. Express covenant for indemnity enforcible by constructive delinquent.] Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475. In an action by a city upon the bond of a street railway to keep the portion of the highway occupied by its tracks in repair,—held, that the city could recover the amount it had been compelled to pay to satisfy a judgment recovered in an action of which the defendant had notice by a person who had been injured through a defect in the portion of the highway the defendant had agreed to keep in repair.

The court say: “ As between these parties, the .plaintiff having taken from the defendant a covenant todo that which, if it had been done as agreed, no harm would have befallen, had a right to rely thereon ; and, though liable to third persons, are not so in pari delicto with the defendant as to be unable to sue and recover over.”

14. Actual •wrong-doer liable to the constructive wrong-doer]. Old Colony R. R. Co. v. Slavens, 148 Mass. 363. A railroad company was held liable for personal injuries to a passenger resulting from the obstruction of a walk leading to its station, caused by the negligent act of a contractor for transferring mails ; the railroad’s regulations not requiring such obstruction. In an action by the railroad to recover over against such contractor,—held, that the railroad was not a joint tort feasor with defendant so as to prevent recovery. T!. ; court say: “ The ground of the present action is, that defendants, by their negligent act, exposed plaintiff to this liability.”

15. Gray v. Boston Gaslight Co.,. 114 Mass. 149. Tort. The first count of the declaration alleged that “the defendant forcibly entered a certain parcel of land of the plaintiff with a building thereon, [describing it,] and placed and fastened a telegraph wire upon a certain chimney,” which caused the chimney to fall, thereby injuring the building, and also falling on passers-by, to whom the plaintiff was' obliged to pay damages for injuries thereby occasioned,— Held, that the owner of a building, under his control and in his occupation, is bound as between himself and the public, to keep it in such proper and safe condition that travelers on the highway shall not suffer injury, and that as the defendant had by his own unauthorized act exposed the plaintiff to such liability, he was liable for the damages that plaintiff had been compelled to pay therefor.

16. Churchhill v. Holt, 127 Mass. 165. If the occupant of a building, connected with which is a hatchway in the sidewalk leading into the basement, is compelled, by reason of his relation to the building, to pay damages recovered in an action of tort by a person who fell into the hatchway, which had been left open by the negligent act of a third person,—he may maintain an action against the third person for indemnity.

[This case was retried, and the jury found that the parties were joint tort feasors, and the plaintiffs were defeated. Reported in 131 Mass. 67.]

17. Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 29 Abb. N. C. 238; s. c., 47 State Rep. 742. A steamship company, which rented a public wharf of the dock department of N. Y. city, sublet it to another company. While in possession of the latter company, a door of the shed covering the wharf fell and injured a stevedore engaged in unloading a vessel. The company renting the wharf from the city was compelled to pay a judgment recovered by the stevedore for the damages thus occasioned in an action brought in the U. S. circuit court of which the subletting company had notice.—Held, that the company paying the damages, if no negligence on their part had contributed to the accident, might maintain an action against the subletting company to recover the sums it had been compelled to pay in defending the action and satisfying the judgment.

The court say : “ Sufficient cases have been cited to show that one who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not, and that the right of indemnity does not depend upon the fact that the defendant owed the plaintiff a special or particular legal duty not to be negligent. The right of indemnity stands upon the principle that every one is responsible for the consequences of his own negligence, and if another person has been compelled (by the judgment of a court having jurisdiction) to pay the damages which ought to have been paid by the wrong-doer, they may be recovered from him.”

18. Bailey v. Bussing, 28 Conn. 455. A judgment was recovered in ■tort against three defendants jointly interested in the running of a stage, for an injury caused to a traveler upon the road by the negligence of one of such proprietors, who was driving. One of the other proprietors was compelled to pay the whole amount of such judgment. Held, that the one who paid the judgment might maintain assumpsit against him whose act caused the injury for contribution or indemnity.

The court say: “ Such a payment I must think stands on the .same ground......as if it had been made on a judgment founded on a joint contract. In equity and justice, it is money paid for the person who in the end is bound to pay the debt, or so much of it as belongs to him to pay. Why then should the plaintiff sue in case rather than assumpsit?”

19. Grand Trunk Ry. Co. v. Latham, 63 Me. 177. Assumpsit by .a master against a servant to recover what it had been compelled to pay a third person injured by the negligent act of the servant. Held, that the action could be maintained.

20. Borough of Brookville v. Arthurs, 130 Pa. St. 501. Trespass brought by a municipality to recover money which it had been compelled to pay in an action for personal injuries caused by a defective sidewalk in front of defendant’s premises. By an ordinance of the town the defen dant, as owner of the real estate fronting the street on which the accident occurred, was required to keep the walk in repair; the municipality had given him notice of its dangerous condition, and he had promised, but neglected, to make the necessary repairs.—Held, that the city was not a ■ joint wrong-doer with defendant by reason of its neglect of its general duty to the public to keep the streets in repair, and could therefore recover back from the defendant what it had been compelled to pay because of his negligence.

21. Stoughton v. Porter, 13 Allen, 191. Action of tort. The declaration alleged that the defendant, placed, used and maintained two sticks within the limits of a highway, which constituted a defect therein, and that one T., while traveling on the highway, was injured thereby and sued the town to recover damages; and this action was brought to recover of the defendant the amount recovered by T. of the town.—Held, that the defendant was liable if he used and maintained the obstruction, although there is nothing to show that he placed it there.

22. Giving; permission is a joinder in the tort.] Trustees of Village of Geneva v. Brush Electric Co., 50 Hun, 581 ; s. C., 20 State Rep. 425 ; 3 N. Y. Supp. 495. Where a city gave its consent to the erectio n of an electric light pole in a highway, where it would be a nuisance,, and the city was compelled to pay damages for injuries occasioned by such location of the pole,—held, that the city could not recover over against the party who had erected the pole, as the city and such party were joint wrong-doers.

23.. Carrier’s servant liable to carrier without judgments, Smith v. Foran, 43 Conn. 244. Trespass on the case for an injury to property in the hands of the plaintiffs as common carriers, by the negligence of defendant, who was plaintiff’s servant. The plaintiffs without suit paid the owner of the goods a certain sum in settlement for the injury.—Held, that the carriers could recover from their servant the amount so paid, it having been shown to be not more than the actual damage sustained by the owner of the goods.

The court say: “ But it is said that the liability of the defendant to the plaintiffs in this case arises from the supposed liability of the plaintiffs to the person whose property was injured by the carelessness of the defendant while engaged in their business, and this-being the case, that the liability of the plaintiffs must be first established in a suit brought by the owner of the property against them, and the amount of damages ascertained, before a suit can be sustained by the plaintiffs against the defendant. It is unnecessary to 1 determine how this would be in an ordinary case of a liability of a master for the negligence of his servant......Here, however, another element comes in. The plaintiffs, being common carriers had a special property in the piano, and could as such special owners maintain an action against the servant for an injury by his negligence to such special property. And besides this, tlje plaintiffs, by reason of their undertaking, as common carriers, were liable to the owner of the piano for its destruction or injury, even though it had been destroyed in the hands of tlie servant with no-fault of his.....The liability of the plaintiffs stands upon. its own ground, their implied contract to deliver the piano in good' condition. . . . And this liability rests upon no other ground where-the delivery is prevented by the negligence of their servant. He is liable to them for his negligence, they to the owner for the nonperformance of their undertaking.”

24. Auctioneer''s action against seller having no title.] Adamson v. Jarvis, 4t Bing. 66. A declaration in case alleged that defendant being possessed of goods, represented to plaintiff, an auctioneer, that he was entitled to dispose of them ; that plaintiff, in consequence, at defendant’s request, sold them by auction and after deducting his charges paid the residue to defendant; that plaintiff deceived the plaintiff in this that he was not entitled at the time to dispose of the goods; and that the true owner afterward recovered against the plaintiff and that defendant refused to reimburse him.— Held, that the declaration was sufficient after verdict, although it did not allege that defendant stated what he knew to be false; he was liable if he affirmed what he did not know to be true.

POLLOCK says that in such case, the action for indemnity may be either deceit or warranty. Pollock on Tort, 171, note e.

25. Constable and one instructing'himf Simpson v. Mercer, 144 Mass. 413. The agent of a mortgagee accompanied the constable while levying a writ of replevin upon goods claimed under the mortgage, and represented to the latter that certain goods not mentioned in the writ were covered by the mortgage and was permitted by the constable to take them. The goods in fact belonged to a third person, who recovered a judgment against the constable for permitting them to be removed.—Held, that the officer and the mortgagee (who had ratified the acts of his agent) were not equally in fault, and that the officer could recover what he had been compelled to pay from the mortgagee.

26. Contractor must indemnify landlord.] Malony v. Brady, 45 State Rep. 864; S. C., 18 N. Y. Supp. 757. Where the owner of a building is compelled to pay his tenants for damages sustained through the negligence of a contractor employed by him to repair the roof, the contractor, as the party ultimately answerable for the wrong, is bound to indemnify him.

S. P., see same case on former appeal, 38 State Rep. 803.

27. Negligent breach of contract.] Burrow v. March Gaslight Co., L. R. 5 Ex. 67. A declaration alleged that the defendant, a gas company, agreed with plaintiff to lay a proper pipe to connect defendant’s main with plaintiff’s meter; that defendant did not properly lay the pipe, but laid it in so negligent and careless a manner, that it leaked and caused an explosion.—Held, that the action was for tort, the statement as to contract being merely by the way ■of inducement; and although the explosion occurred by the negligent bringing of a lighted candle near the leaking pipe, yet as the person so using the light was not the servant of plaintiff but of a third person,' plaintiff was entitled to recover. But Martin, B., ■says: “ Even if Sharratthad been a servant of the plaintiff, his negligence would not have exonerated the defendants from substantial liability for their breach of contract. It is not because a man’s servant is guilty of negligence that another person who has contracted to do a particular thing and has not done it, is to be exonerated from the consequences of a breach.”

28. Bank of Utica v. Childs, 6 Cow. 238. Assumpsit by a bank against a notary to recover what it had been compelled to pay to the indorsers of a note by reason of the notary’s negligence in not notifying prior indorsers.—Held, that the cause of action arose immediately upon the notary’s neglect of duty, and was barred by the statute of limitations after the expiration of six years from that time, and not from the time when the bank had been compelled to pay for the neglect.

29. Enough to show defenda.7it's neglige7ice.'\ Mayor, etc. of N. Y. v. Dimick, 16 State Rep. 913; aff’g 20 Abb. N. C. 15. Where a complaint by the city against a property owner alleged that the person injured commenced an action against the plaintiff and recovered a judgment; and that the injuries for which the judgment was ■obtained was caused by the 7iegligent act of the defendant,—held, on demurrer, that the liability of the city for the injury done was sufficiently alleged, although the complaint did ■ not set forth the facts upon which the recovery against the city was had,—such as notice of defect.

30. DiffereTtt test of 7iegligencel\ Nashau Iron, etc. Co. v. Worcester, etc. R. R. Co., 62 N. H. 159. Case. The declaration alleged that by the defendant railroad’s careless management of their engine and cars, the plaintiff’s hope was frightened and caused to run and injure a third person ; that such third person had recovered therefor against plaintiff in an action of which the defendant had notice. Defendants demurred upon the ground that there could have been no recovery by the injured party against plaintiff unless the plaintiff himself was also .in fault.—Held, that the demurrer should be ■overruled, since it might be shown under the general allegations of the complaint that plaintiff’s carelessness consisted solely in permitting the horse to be where it was at the time, and ordinary care by the defendants would have prevented its fright, or that at the time of the occurrence the plaintiff could not and the defendants could by such care have prevented the accident.

31. When does liability accrue!] Veazie v. Penobscot R. R. Co., 49 Me. 119. Action on the case by a town against a railroad company for constructing their railway across a highway in such a manner as to be dangerous to travellers, and thereby causing a traveller to be injured, to whom the town had been compelled to pay damages.—Held, that the right of action accrued after the liability of the: town to the traveller was ascertained and fixed, and the statute of limitations began to run from that time, and not from the time, when the obstruction was made.

32. Notice of suit not essential.] Village of Port Jervis v. First National Bank, 96 N. Y. 550. It is nota condition precedent to the right of a municipal corporation, which has been compelled to pay a judgment recovered against it by an individual through an. obstruction or defect in a highway, to recover over against the. person who negligently or unlawfully created the defect which caused the injury,—that it should give such person notice of the prior action against it.

The court say : “ This liability grows out of the affirmative act of the defendant and renders him liable not only to the party injured but also mediately liable to any party who has been damnified by his neglect. Liability in such a case is predicated upon the negligent character of the act which caused the injury and the general principle of law which makes a party responsible for the consequences of his own wrongful act (citing Clark v. Fry, 8 Ohio St. 358 ; Ellis. v. Sheffield Gas Co., 75 Eng. C. L. 767). The liability of the author of the act which occasions the injury does not depend upon the fact of his receiving notice of the action brought by the injured party against the municipality, which under the law, is also liable for the-damages occasioned by its neglect of duty in keeping its streets and sidewalks in repair, but rests upon his original liability to all persons who may have suffered damages from his affirmative act of negligence (citing Chicago City v. Robbins, 2 Black. 418, 423). The only object of notice in such a case is to enable the corporation to avail itself of its rights to impose the burden of defense upon the party ultimately liable, and to estop the authors of the injury by the judgment recovered, from again contesting the facts upon which such judgment depends."

33. Successive recoveries by differe7it sufferers\. Newbury v. Conn. & Passumpsic Rivers R. R., 25 Vt. 377. Action on the case brought by a town to recover what plaintiff had been compelled to pay on a judgment recovered against it by a person injured by reason of a defect in a highway caused by the defendants neglect .and willful acts.—Held, that the fact that the town had already recovered from the defendant what it had been compelled to pay in an action by the husband of the injured person, who was injured in the same accident, was not a bar to the present action. Red-FIELD, Ch. J., says : “ The question here is how far the town is precluded, by one recovery against the defendants, for damages sustained by their neglect, from all future recovery for damages sustained by reason of the same neglect. The neglect is one but the damage is several, and may be successive, extending over a considerable time. The omission of defendants was no cause of action ■against any one, until some one was injured, and then not unless injured without their own fault. And it afforded no cause of action in favor of these plaintiffs against the defendants, until a final recovery against the plaintiffs; for until it was shown in some way that the damage was such as plaintiffs were legally bound to bear," there was no obligation upon the defendants. And then the obligation upon the defendants seems to us one of indemnity chiefly, against the consequences of defendants neglect. It is the consequence which constitutes the cause of action, and the only cause of action.”

34. — single or double damages.] City of Lowell v. Boston & Lowell R. R. Corp., 23 Pick. 24. In an action on the case by a town to recover over what it had been compelled to pay by defendants neglect,—held, that plaintiff was only entitled to indemnity to the extent of single damages. The court say: “To this extent only were the defendants liable to the parties injured ; and so far as the plaintiffs have been held liable beyond that extent they have suffered from their own neglect; and whether it was actual or constructive, is immaterial. The damages were doubled by reason of the neglect of the town; and although there was in fact no actual negligence, yet constructive negligence was sufficient to maintain the action against them; and they must be responsible for the increased amount for damages, and cannot throw the burden on the defend.ants.”

IV. Implied assiimpsit.

35. Cases on the implied promise to indemnify!} Village of Seneca Falls v. Zalinski, 8 Hun, 571. Where a person places any obstruction for his private benefit in a public highway with the knowledge and without any objection by the municipal authorities, a license from such authorities will be implied, and the person accepting such license takes' it upon an implied agreement on his part that the city shall be protected by him against loss or damages by reason of the obstruction.

36. Sureties jointly bound, even though they pay out of a fund jointly belonging to them, may each sue severally for money paid by him. Even if partners pay out of partnership funds, this rule is applicable unless the joint obligation as sureties was a partnership act. Gould v. Gould, 8 Cow. 168. They cannot sue jointly. Their interest in the transaction of suretyship being several, the promise which the law implies is several. Gould v. Gould, 6 Wend. 263.

37. If the promise to indemnify or contribute is express, then the question whether the suit must be several or joint depends on the form of the promise. Gould v. Gould, 6 Wend. 263, 265.

38. Lingard v. Bromley, 1 Ves. B. 117. Bill by assignee against co-assignee (in bankruptcy) to enforce contribution for a sum paid by plaintiff which had been adjudged to be paid by plaintiff and defendant. Contribution will be enforced among assignees in bankruptcy to reimburse a payment by one under an order for a loss occasioned by their joint act—the loss not having arisen ex delicto— and the defense that defendant acted in the matter only for conformity upon the representation and advice of plaintiff, held of no avail.

39. Joint employer contributing after injury by negligent servant.] Pearson v. Skelton, 1 M. & W. 504. Assumpsit for money paid. The action was brought by one of several persons jointly interested in running a stage, against one of the others to recover contribution to a sum plaintiff had been compelled to pay to satisfy a judgment against him recovered by a person injured by the negligence of a coachman of the joint owners.-—Held, that although the owners were not joint tort feasors so as to preclude contribution between them, yet as their relation was that of partners, and there was a partnership fund, plaintiff’s remedy was in equity.'

40. Contribution betwee?i municipalities jointly negligent.} Armstrong County v. Claron County, 66 Pa. St. 218. Assumpsit. Held, that where .two municipal corporations are jointly bound to keep a bridge in repair, and one is compelled to pay damages to a traveller injured by the improper repair of the bridge directed by the commissoners of both towns, the town paying the damages can recover contribution from the other. 
      
       In Brennan v. Gellick, above referred to, the plaintiff moved at the Special Term of the superior court for the continuation of an injunction pendente lite. The action was brought by Margaret Brennan against Joseph Gellick and Joseph J. Schreiner, to enjoin the continuation of blasting which was being done by the defendant Gellick on the premises of the defendant Schreiner to the alleged injury of plaintiff’s adjoining house. A copy of the complaint is given in Brennan v. Schreiner, 28 Abb.N. C. 481, where the court overruled the demurrer of' the defendant Schreiner on the ground that it admitted the allegation of the complaint that it was impossible to remove the rock immediately adjoining plaintiff’s premises without causing damages to plaintiff’s house. The opinion of the court on the motion to continue the injunction is as follows:
      Gildersleeve, J.—The plaintiff is the owner of a five-story brick apartment-house, being No. 405 East Eighty-eighth street, occupied by nine tenants. The defendan Schreiner isthe owner of lots immediately adjoining on the east, being Nos. 407 and 409 East Eighty-eighth street, which lots are covered with rock which extends a considerable depth below the surface and forms part of the stratum, as plaintiff claims, which runs underneath plaintiff’s said dwelling-house. The defendant Schreiner has made a contract with the defendant Gellick to remove said rock from his said premises by blasting. Such blasting has done considerable damage to the plaintiff’s property, and plaintiff secured a temporary injunction restraining defendants from further blasting, which injunction the plaintiff now seeks to have continued ftenderite lite.
      
      The defendant Gellick is an independent contractor, and it is not claimed that the relation of master and servant exists between the defendants. The defendant Schreiner demurred to the complaint, claiming that as he had made an independent contract with the other defendant, he is not liable for the negligence or wrongful acts of said defendant Gellick. I think, under the state of facts, as disclosed by the papers before me, the demurrer should be sustained. A party is not chargeable with the negligent acts of another in doing work upon his lands, unless he stands in the character of employer to the one guilty of the negligence, or unless the work as authorized would necessarily produce the injuries complained of, or they are occasioned by the omission of some duty incumbent upon him (McCafferty v. S. D. & P. M. R. R. Co,, 61 N. Y. 178, 179 ; Burmeister v. N. Y. El. R. R. Co., 47 Super. Ct. 264, 267). The plaintiff claims that the work per se was wrongful and injurious to the plaintiff, and that, therefore, the owner as well as the contractor are liable for any injury to plaintiff, whether the contractor was negligent or not. But the facts, so far as they may be gathered from the papers herein, do not sustain this contention. It seems that the injuries complained of were the result of an accident, and are not the intrinsic and necessary results of the work called for by the contract between the two defendants. To hold that blasting in the City of New York is intrinsically dangerous and unlawful would be to put an end to all public improvements. In the case at bar the affidavits of the experts show that the work can be done without injury to the property of plaintiff. No negligence in blasting or removing rock under said contract, is alleged in the moving papers. The plaintiff rests her rights upon the broad claim that the work contracted for is in its nature dangerous; that said work was so wrongful and injurious per se to the plaintiff, that its actionability does not depend upon negligence in doing it. But I am satisfied from the evidence before me that, with due care and skill, the contractor can carry on the work in question without imperilling the plaintiff’s adjacent house. I cannot see that plaintiff has adequate cause to fear irreparable injury, and therefore I am not warranted in making an order continuing the injunction.
      I may add, however, that should the contractor continue the work in a manner to cause further injury to the plaintiff’s property upon sufficient evidence of the continuously injurious character of the work, I think an appeal might properly be made to a court of equity to limit and restrain the defendant contractor in the manner in which the work should be conducted ; and should there be sufficient evidence of a persistence on his part to carry on the work in a heedless and reckless manner, he might be restrained altogether in the prosecution thereof.
      See, also, Rafter v. Tagliabue, 29 Abb. N. C. 1, holding in a similiar ■case, that the injunction should permit the blasting to go on, and ■only prohibit the doing of the work without the safeguards which prudent men, while doing like work, adopt to prevent injury.
     