Carman v. Mayor of New York

14 Abb. Pr. 301 | N.Y. Sup. Ct. | 1862

Clerke, J.

This is an action in the nature of an action on the case for the negligence of the defendants’ servants.

The law, in allowing a remedy of this kind, supposes some fault or dereliction on the part of the master; otherwise it would not make him liable for the conduct of other persons. The gist of the action, then, I presume, is the neglect on the part of the master to do what he ought to have done; and this neglect may consist either in the want of sufficient care in employing suitable persons, or in the want of that precaution in directing their labor which would prevent them from doing any unintentional injury to others. In either case, the master is equally culpable. He has not done that which he ought to have done. By his fault, a citizen has suffered an injury.

The complaint alleges that the plaintiff is the owner of land adjoining the Croton Aqueduct lands, belonging to the defendants; that there were seven large fruit-trees upon the land of the plaintiff, in a line parallel, or nearly parallel, with the northwesterly line of the Croton Aqueduct lands, and that there were near the said fruit-trees other and similar trees upon the Croton Aqueduct lands belonging to the defendants; that the latter directed their agents and servants to cut down and remove from the Croton Aqueduct lands all the trees thereon, and employed divers agents and servants to perform the work; and that the said agents and servants entered upon the performance of the work, but by reason of carelessness of their said agents and servants, and the negligence of the defendants in not having the work superintended and directed by competent persons conversant with the boundary lines between the land of the plaintiff and that of the defendants, the fruit-trees on the land of the plaintiff were cut down and destroyed.

How, I think this alleges a sufficient legal culpability on the part of the defendants to make them liable for this act of their servants. The latter committed the act in the course of their employment, ignorantly, under the supposition that they were on the land of the defendants. The servants did it through ignorance, which proper precaution on the part of the employer would have prevented. It was plainly their duty in a case of this kind, in giving instructions to the laborers, to give them the information necessary to enable them to discriminate between the trees of the plaintiff and those of the defendants. It would not be doubted for a moment, if the defendants mistakingly supposed that the trees of the plaintiff were those on their own land, and directed the laborers to cut them down, that they would be liable. This would perhaps be a direct act of trespass, although done in ignorance. Is it less an act of negligence, and less a legal culpability, that they failed to use the means by which the injury to the plaintiff would have been avoided? I think, therefore, that the complaint states facts sufficient to constitute a cause of action.

The demurrer must be overruled, with costs: defendants to answer in ten days, on payment of costs.