McDermett v. City of Kingston. grossly negligent, but it was also true that the officers of the defendant were equally culpable. The state of the pathway was left for the jury to find; but they were distinctly told, for the reasons now stated, that if the accident was caused solely by its perilous condition, there being no dispute as to the means by which it was made so, and as to the absence of all care thereover by its officers, the defendant was to be held accountable-an accountability arising from its own permissive acts, and a neglect to exercise power, which, as negligence giving a cause of action, is as patent and perceptible as the careless doing of a lawful act could be. This discussion has already been somewhat protracted, and it will end by the citation of a single authority, which, whilst it is unlike the case of Masterton . Village of Mount Vernon, above quoted, in the respect of control over the work of the municipality, is the counterpart of this, very nearly, in that particular. In Wendell v. Mayor, &c. of Troy (4 Abb. Ct. App. Dec. 563), the common council was held responsible for an injury caused by a faulty construction of a sewer, which the corporation had power to oversee. The liability (see page 573) was put. by Judge WOODRUFF in his opinion, upon the right of the municipality to supervise the work, and what he does say is so exactly applicable to the cause before us that we quote his exact words: "Now, however true it may be that the corporate authorities are not under any such responsibility as insurers of the safe condition of the streets, that they become instantly liable for defects the moment they occur, and although they are caused by the act of a wrong-doer, and without any previous notice to them, calling their power and duty to provide for their safe condition into exercise, it is clear, I think, that when they consent that the public street may be excavated and a drain introduced, they have Rogers v. Chicago, &c. R. Co. notice that an act is to be done which directly invokes their power and duty, and calls for its exercise in behalf of the public, to see to it that the property of those who have a right to pass and repass is not endangered by a hidden trap which superficial observation would not disclose; and supervision of the work to that end was therefore incumbent upon them." What was true, when Judge WOODRUFF penned these sentiments, is true now. When the common council of the defendant knew that work was in progress, under their general permission, which might be dangerous, it was their duty to exercise the power the law conferred upon them, so that, not property only, but human beings, might pass with safety without being "endangered by a hidden trap," made invisible, in the absence of a light, by the darkness of a "very dark night," and unprotected by a guard. The safety of the citizen demands of municipalities supervision in these cases, in which the law confers the power, and when they by their officers refuse and neglect its exercise, the rule which holds them responsible for injuries caused thereby is neither harsh, oppressive, or unjust, but, on the contrary, is wise, salutary and just. ROGERS v. CHICAGO & NORTHWESTERN RAILWAY COMPANY. N. Y. Supreme Court, Second Department, Second District; Special Term, July, 1878. RAILROADS.-REGISTERED COUPON BONDS.-DESTROYED SECURITIES. -ISSUE OF DUPLICATE BONDS. Where registered coupon railroad bonds were destroyed at the same time that their owner lost his life by the burning of a steamship, and an action was brought by the administrator of the decedent to Rogers v. Chicago, &c. R. Co. compel the railroad company to pay interest in arrears, and issue duplicate bonds,-Held, that upon receiving an indemnity bond with sureties, the defendant should comply with the demands of the plaintiff. Trial by the court. This action was brought by Charles W. Rogers as administrator, &c., of Henry Rogers, against The Chicago and Northwestern Railway Company, to compel the defendant to issue and deliver to the plaintiff a duplicate of two certain registered bonds, with the coupons, which had been destroyed, and also to recover $350 back interest on said bonds. J. F. BARNARD, J., before whom the case was tried without a jury, found as matters of fact, that the defendant issued certain bonds, amounting in the aggregate to $3,500,000, dated July 1, 1859, and payable August 1, 1885, with interest payable semi-annually, and that a mortgage was made to secure said bonds; that two of said bonds, of the denomination of $1,000 each, and numbered respectively 3245 and 4918, were owned by Henry W. Rogers at the time of his decease, and were registered in the office of the defendant as his property, and were at the time of the trial so regis tered, and that the principal was payable only to him, and the bonds transferable only by him and his attorney, on the books of the defendant; that attached to said bonds were interest coupons for $35 each, payable every six months; that the said Rogers on November 9, 1875, perished on the steamer Waco, which was destroyed by fire in Galveston harbor; that he had with him at that time said bonds with the coupons attached, and they were then destroyed; and that $350 interest was due, and had not been paid. He also found, at defendant's request, that each of said bonds were printed lithographically, with appropriate devices and vignettes, and were executed by said company under their corporate seal, and countersigned Rogers v. Chicago, &c. R. Co. by the president, treasurer and secretary of said company; and that each of said bonds recited and stated on its face, that it was one of a series of bonds of the same tenor and date, amounting in the aggregate to $3,500,000, with a contingent provision for a further issue, not to exceed in amount $100,000, and that payment was secured by a deed of trust executed and delivered by the defendant to Samuel J. Tilden, trustee, conveying the railway of said company as therein mentioned; and each of said bonds contained a provision that it should not be valid or obligatory until it should have been authenticated by a certificate indorsed thereon, duly signed by the said trustee or his successors; and that said bonds might pass by delivery or might be registered, at the option of any holder, and after such registration, and the indorsement of a certificate thereof upon the bond, no transfer should be valid, unless such transfer be registered and indorsed as aforesaid, or unless the last registry be to bearer or in blank; that the said trust deed mentioned in said bonds, was duly executed and delivered, and is commonly known and described as a mortgage, and said bonds were ordinarily known and described, and were designated by indorsements on them as first mortgage bonds; that the said defendant had not in its possession or under its control, nor did it have any knowledge of the existence of the lithographic stone from which said bonds were printed, nor had it any impression from said stone, except the one produced on the trial, the coupons upon which had all been canceled. D. T. Walden (Sterling & Walden, attorneys), for plaintiff. The court has the right to order the payment of the coupons upon the lost bonds, and to order the execution of duplicates of them. If securities are destroyed, a recovery may be had without indemnity (Des Arts v. Leggett, 16 N. Y. 582-586). Rogers v. Chicago, &c. R. Co. The United States government provides in respect to its registered bonds, in case of destruction, that duplicates will be issued (U. S. Rev. Stat. §§ 3702-3706). A court of equity has complete power to protect the defendant by requiring suitable indemnity (Story's Eq. $$ 81, 82, 84 and note, 85, 88; Statute 9 and 10 Wm. 3, c. 17; Byles on Bills, 378; 2 Daniels on Neg. $$ 410, 1466; Lawrence v. Lawrence, 42 N. H. 109; 1 Mod. c. 24; 1 Fombl. Eq. b. 1, c. 1, § 3; Stokoe v. Robson, 19 Ves. 385; 3 Ves. & B. 54, and in 1 Danl. Ch. Pr. 661; 2 Ib. 716; Shelmardine v. Hanop, 6 Mod. 40; 1 Jones on Mortgs. § 100; 1 Story Eq. 111, 112). The security to be required for the defendant's protection should not be equal to the amount of bonds and coupons (Des Arts v. Legget, 16 N. Y. 582). J. S. Lawrence, for defendant.-The power of a court to order the re-execution of a paper has not been exercised except in a case where the party who has sustained loss is exposed to undue perils in the future assertion of his rights. In this case there is no danger, as the intestate's title appears of record in the books of the company. The doctrine that a court of equity has power to order the execution of a duplicate security in place of one that has been lost has been expressly denied (Hoddy v. Hoard, 2 Ind. [Carter] 474). The court can, without exercising any doubtful power, fully protect the plaintiff by decreeing judg ment of both principal and interest as it shall mature upon equitable terms of security. A further evidence of title might be afforded by directing the issuing of a certificate by the defendant that such bonds were reg istered in the name of Rogers. The security to be given should be sufficient to indemnify the defendant against the full amount of the principal and interest due and to become due on the bonds. The defendant |