63 Barb. 111 | N.Y. Sup. Ct. | 1872
The plaintiffs seek to maintain this action upon this theory : That the Binghamton bridge was a nuisance; that the defendants’ testator erected and continued that nuisance; that by a familiar rule, all who are engaged in the commission of a nuisance, trespass, or other illegal act, are principals; and liable to respond in satisfaction for the whole. The defendants, in reply, contend that the bridge was not a nuisance. In this, I think, the defendants are mistaken. The United States court has decided that it was both contrary to law, and an infringement upon the plaintiffs’ legal rights. It was also to the plaintiffs’ hurt. Therefore it was clearly what is known in law as a private nuisance. The defendants further contend, that the bridge, itself, was not a nuisance, but only became so, by its use; that Mr. Dickinson and the defendants’ testator, or their grantees, had a right to bridge the stream for their private convenience ; that the erection of the bridge was therefore innocent and lawful; and, that the defendants’ testator cannot be held responsible for the erection of a nuisance; because the nuisance Avas not created by the erection of the bridge, but by its subsequent unlawful use. The defendants are doubtless correct in their simple position, that riparian owners have a right to bridge a stream for their private use; but, the conclusion, I am inclined to think, does not follow; because the liability for a nuisance is not restricted to persons Avho occasion the Avhole of it, but those Avho are guilty of doing but a part, are liable also, if they do it with the like
I am therefore of the opinion that the defendants are liable, in this action, for the damages caused to the plaintiffs by the Binghamton bridge.
The defendants objected, on the trial, to the admissibility of the plaintiffs’ books, and those of the Binghamton Bridge Company; and they now contend that their .reception was error. This evidence was of three kinds. 1. The books of the Binghamton Bridge Company, proved to have been kept by its treasurer in the business of the company; and to be in his handwriting, and that the treasurer was dead. 2. The books of the plaintiffs, proved by its treasurer to have been kept by him, and to contain correct entries of tolls, as given to him by the toll-gatherer, and coupled with proof,'by the toll-gatherer, that he had
1. The first were plainly admissible, under the rule that entries made in the usual course of business, by one who had no interest to falsify, should be received in evidence after his death. (Price v. Earl of Torrington, 1 Salk. 285, and cases cited in note. Union Bank v. Knapp, 3 Pick. 106. 1 Stark. Ev., 5th Am. ed., 298 to 302. Cowen & Hill’s Notes, pp. 675, 676, note 489. Nicholas v. Webb, 8 Wheat. 326. Halliday v. Martinet, 20 John. 168. Halliday v. Littlepage, 2 Munf. 316. Nichols v. Goldsmith, 7 Wend. 160. Briggs v. Low, 5 Gill & John. 134. Farmers and Mechanics’ Bank v. Boraef, 1 Rawle, 152. Welsh v. Barrett, 15 Mass. 386. Leland v. Cameron, 31 N. Y. 115, 121.)
2. The second set of books were admissible, because proved by the treasurer who kept them. (Union Bank v. Knapp, 3 Pick. 106. Cooper v. Marsden, 1 Esp. 1.) The evidence of these books before the jury was clear upon the point of damages to the plaintiffs, by the diversion of tolls, and to prove the extent of such diversion, the receipts of toll in former years was legitimate evidence, tending to prove the extent of damages ; but,
3. The plaintiffs’ books offered to prove this amount of tolls which was received prior to the year 1860,1 think, were erroneously admitted, for the want of the necessary and proper preliminary proof as to such tolls. It was not sufficient to show that they are said to b.e, or that they purport to be, the books of the corporation. To make their contents evidence, it is not enough to prove that they appear to be the books of the corporation; nor is it enough to prove that they were in the handwriting of the former treasurer or toll-gatherer. (Highland Turnpike Co.
Miller, P. J,, concurred.
The court held the defendants liable to the plaintiffs for the loss of their bridge, by the floating of the Binghamton bridge against it, and carrying it away, without reference to the question whether said latter bridge was negligently or unskillfully built, or not.
I am inclined to think this was wrong. The building of the Binghamton bridge was not unlawful. The Binghamton Bridge Company had the right to build upon its own premises whatever it chose—bridge or whatever else—■ so long as the mere building did not interfere with the rights of others. (30 N. Y. 44, 62.)
It is necessary to distinguish between the use of the bridge, which was what caused the loss of tolls to the plaintiffs, and the simple building of it. It is the former which made "the bridge a private nuisance as to the plain
The building of the bridge, then, not being unlawful, nor wrongful against the-plaintiffs, there is no ground for holding H. Lewis, or his estate, liable for the going off of -the bridge, and its floating against the plaintiffs’ bridge and carrying it off; unless it went off by reason of negli
As to the liability for the opening of the bridge to public use, although there may be much room to doubt whether H. Lewis could be made liable, individually, for what he did as a corporator, (see 1 East, 555,) yet it may be that enough appears in the case to implicate him, individually, in that act, and so to make him liable to the plaintiffs for the loss of tolls occasioned by the wrong.
In respect to the admissibility of the books of the plaintiffs’- treasurer in evidence, I agree with my brother Potter, that they were not admissible, any further than their contents were verified by the treasurer. They were admitted to show the yearly tolls of'the plaintiffs’ bridge, for eight years next prior to 1855, and the eight years next succeeding, although the treasurer who introduced them became treasurer in I860, and then first became acquainted with them. I do not see on what principle the plaintiffs were entitled to use their own books for the thirteen years before 1860, entirely unauthenticated as they were, against the defendants, who were utter strangers, and in no way connected with them,- to make out, by the comparison of yearly amounts of toll, received by the plaintiffs before and after the Binghamton Bridge Company’s bridge was opened for travel, the loss occasioned by such opening. If such comparison was a competent mode of showing the loss for which the defendants were accountable, (which may be doubted,) still the evidence of the yearly receipts (prior to I860) was, I think, most clearly defective, in the absence of proof of the correctness of the entries in the books, relied upon. These entries, as they stood upon the books, when offered and admitted in evidence, were merely the plaintiffs’ declarations; and these declarations were taken, against the defendants’ objection, as evidence. It seems to me palpably wrong.
For the two reasons above assigned, I am of the opinion that a new trial should be granted, with costs to abide the event.
Kew trial granted.
Miller, P. Potter and Parker, Justices.]