FIRST DEPARTMENT, MARCH TERM, 1875.

EDWARD HEALY, RESPONDENT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, APPELLANT.

Liability of corporation for defective sidewalk — contributory negligence — intoxication. Where, in an action brought to recover damages for injuries sustained in consequence of defects existing in a sidewalk, it appears that the plaintiff was intoxicated at the time of the accident, it is for the jury, and not for the court to say whether or not the intoxication contributed in any degree to the injury sustained.

Cases on question of contributory negligence collated.

APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

In the evening of August 2, 1869, the plaintiff was walking on the sidewalk along West Forty-third street, New York city, and fell down, by reason of the flagstones being broken and misplaced, having been so moved, by the sinking of an adjoining lot, as to slope very much toward it. The action was brought to recover damages for the injuries thus sustained.

D. J. Dean and E. Delafield Smith, for the appellant. A verdict which is clearly against the weight of evidence, will be set aside by an appellate court and a new trial granted. (Gatlin v. Wilcox, 26 Ark., 309; Blosser v. Harshbarger, 21 Grat. [Va.], 214; Macey v. Wheeler, 18 Abb., 73; S. C., 30 N. Y., 231; Hutchinson v. Coleman, Halst., 74; 3 Graham & Waterman on New Trials, 1207; Hinton v. McNeil, 5 Ohio, 509; Boyd v. Colt, 20 How. Pr., 384.) The plaintiff must be free from any negligence contributing to cause the accident. (Tonawanda R. R. Co. v. Munger, 5 Denio, 255; Daycombe v. Buffalo R. R., 27 N. Y., 221; Clark v. Eighth Ave. R. R., 36 id., 135; Smith v. First National Bank, 99 Mass., 605; 109 id., 510.)

George Bell and E. Y. Bell, for the respondent, cited as to the liability of municipal corporations in general, and city corporations in particular: Hudson v. Mayor of N. Y. (9 N. Y., 163); Storrs v. City of Utica (17 id., 108); The People v. Kerr (27 id., 188); Rochester White Lead Co. v. The City of Rochester (3

FIRST DEPARTMENT, MARCH TERM, 1875.

Comst., 464); Wallace v. Mayor of N. Y. (9 Abb., 40); Requa v. The City of Rochester (45 N. Y., 129). Notice may be inferred in cases like the present from the lapse of time. (Wallace v. Mayor, etc., of N. Y., 9 Abb., 40; Davenport v. Ruckman, 16 id., 341; S. C., 37 N. Y., 568; Requa v. The City of Rochester, 45 id., 129; Hume v. The Mayor, etc., of New York, 47 id., 639; McCarty v. The City of Rochester, 46 id., 194.) Intoxication is not per se, or, as matter of law, contributory negligence. (Filer v. N. Y. Cent. R. R. Co., 49 N. Y., 47; Viner v. N. Y. & Wash. Steamship Co., 50 N. Y., 23; Alger v. Lowell, 3 Allen [Mass.], 402; Robinson v. Pioche, 5 Cal., 460.)

BRADY, J.:

The plaintiff recovered a judgment against the defendants, for injuries received while walking down Forty-third street toward the Eleventh avenue. The sidewalk, at the point where he fell, had fallen away into the sunken lot below it, and the flagstones, which were about four feet in width, had become displaced and broken. This had been the condition of the walk for a long time. There was no guard to protect the passer by, and the negligent state of the walk was a question about which there could be no doubt. The plaintiff was, it is claimed, intoxicated, and there is reason to suppose that he was at the time of the accident, although the evidence is conflicting on that subject—not sufficiently so, however, as to create any serious doubt of the fact. It may be assumed, indeed, upon the evidence, that he was under the influence of liquor to such an extent as to render him incapable of using, in his locomotion, the same power which he could have employed when sober. This was the defense on the part of the city, and the only one. That it had not done its duty to the citizen could not be gainsayed. Its neglect was evident. Whoever was intrusted with the duty of protecting the wayfarer in that part of the city, had signally failed to perform it. The condition of the walk was not only dangerous, but disgraceful. It is quite apparent that at all such places, guards should be erected, to provide against the occurrence of accidents, which not only endanger life but subject the city to great expense. The actions frequently brought against it, to recover damages for injuries sustained by persons who were not intoxicated, seem to teach no

FIRST DEPARTMENT, MARCH TERM, 1875.

lesson, and equally to fail to induce greater vigilance, or a more faithful adherence to duty, or a greater appreciation of life or limb. The people of this city are subjected to great danger by incumbered streets, and by neglected excavations, from which it is to be hoped they will soon be relieved by a better administration of its affairs. It may indeed be said, that these accidents result in the loss to the city of a very large sum in the aggregate, in each year. The defense as suggested was, however, the intoxication of the plaintiff, but that did not deprive him, per se, of protection. By putting himself in that unfortunate condition, he was not abandoned by the law. He was only subjected to its consequences, whatever they might be, and if his drunkenness in any way contributed to his injury, he must bear the burden. Whether it did or not, was a question of fact for the jury to determine. It was for them, and not for the court, to say whether he was intoxicated at the time of the accident, and whether, if he was, it contributed in any degree to the injury which he received. The defendants had the full benefit of this ruling, and the jury found against them. The case of Alger v. Lowell,* is in many respects similar to this. The plaintiff in that case was injured by falling down a declivity outside the limits of the street, which was not protected by a railing. Evidence was given, tending to show that the plaintiff was intoxicated at the time of the accident, and the judge was requested to charge that, if he was in that condition, they were to presume that he was negligent. He refused to grant the request, and his refusal was sustained. The court, per Hoar, J., said: "Intoxicated persons are not removed from all protection of the law." The intoxication was an important circumstance to be considered by the jury upon the question whether due care was used, and the jury were directed so to regard it. In the case of Robinson v. Pioche, etc., † which was an action to recover for injuries received by falling through an uncovered hole in the street, the court held, that if the defendants were at fault in leaving an uncovered hole in the sidewalk, the intoxication of the plaintiff could not excuse such gross negligence, and HYDENFELDT, J., said: "A drunken man is as much entitled to a safe street as a sober one, and much more in need of it." The rule in relation to contributory negligence, though severe, is not so absolute as the counsel for + 5 Cal., 460.

*3 Allen (Mass.), 402.

FIRST DEPARTMENT, MARCH TERM, 1875.

the defendants would seem to think it. Its application must depend upon facts and circumstances, the value of which upon the subject, must be ascertained and determined by the jury, when one is impanneled to try the issue involving it. It has been held in an action to recover damages for causing the death of a child three years old, that it was not, per se, such negligence as would prevent a recovery, to have permitted the child to cross a railroad track, unattended save by a child nine and a half years old,* or to permit a boy twelve years of age, unattended, to go from one car to another in pursuit of a seat, or to return to the car in which his mother was seated; † or that a woman partially blind should go unattended into the streets; or for a driver to undertake to cross a bridge on a dark night, allowing his horses to choose their way. § It is not proposed here, therefore, to usurp the functions of the jury, and to say that the plaintiff contributed to the injuries he received. This is not apparent. The condition of the walk was such, that a person, not intoxicated, might have fallen as the plaintiff did, by proceeding on his way under the impression which he would have the right to entertain, that it was safe for him to do so, thus assuming that the highway was kept in repair, and that the defendants had done their duty. It may be said, therefore, that it does not appear in the evidence given, that the plaintiff, by his inebriety, contributed to the injuries which he received, while, on the other hand, it is certain, that if the defendants had done their duty in reference to the walk, the accident would not have happened. It would be impossible. The duty of the defendants to keep the streets in such repair that they may be safely traveled night and day, has been so frequently adjudicated as to make it entirely unnecessary to cite authorities to show it. The judgment, for these reasons, should be affirmed.

There is nothing contained in the request to charge, or exceptions taken, which would warrant us in disturbing it. DANIELS, J., concurred.

Judgment affirmed.

* Ihl v. The Forty-second Street and G. Street F. R. Co., 47 N. Y., 317. Downs v. N. Y. Central R. R. Co., 47 N. Y., 83.

Davenport v. Ruckman, 37 N. Y., 568.

Rector v. Pierce, 3 N. Y. Sup. Ct., 416.

FIRST DEPARTMENT, MARCH TERM, 1875.

STEPHEN D. STEPHENS, RESPONDENT, V. THE BOARD OF EDUCATION OF THE CITY OF BROOKLYN, APPELLANT.

Money illegally obtained — when recoverable from third person.

G. obtained from the plaintiff, upon a forged bond and mortgage which he knew to be such, a sum of money, and paid it to the defendant on a precedent debt, which it did not appear had been discharged, nor that any security therefor had been parted with by reason of such payment. Held, that the defendants were liable for such amount to the plaintiff, after notice and demand.

APPEAL from an order made at Special Term overruling a demurrer.

Winchester Britton, for the appellant. It was the end of the identity of the fund, when Gill deposited plaintiff's check in the bank, and it was passed to the credit of his account. (Matter of Franklin Bank, 1 Paige, 249; Commercial Bank v. Hughes, 17 Wend., 94; Graves v. Dudley, 20 N. Y., 76; Marsh v. Oneida Bank, 34 Barb., 298; Etna Nat. Bk. v. Fourth Nat. Bk., 44 N. Y., 82.) The payment not having been made to defendant by Gill in the identical money procured from plaintiff, but from his general deposit account in the bank, this action cannot be maintained. There is no privity between plaintiff and defendant, which is absolutely essential to the maintenance of this action, unless there has been mala fides on the part of defendant, which is not this case. (4 B. & Ad., 611, 612; Williams v. Everett, 14 East, 582; Stephens v. Babcock, 3 B. & Ad., 354; Pierce v. Craft, 12 John., 90; Rapalje v. Emory, 2 Dal., 51, 54.) There is no demand and refusal alleged, which is necessary. (Walrath v. Thomson, 6 Hill, 540; Phelps v. Bostwick, 32 Barb., 314; S. C., 24 id., 300; Mayor v. Erben, 3 Abb. Ct. of App. Dec., 255; Sears v. Patrick, 23 Wend., 538.)

Alonzo C. Farnham, for the respondent. The case of Caussidiere v. Beers (2 Keyes, 198), is a case in point, and the Court of Appeals there affirmed the right of recovery in such an action. The appel