104 N.Y.S. 928 | N.Y. App. Term. | 1907
There are three grounds of reversal urged upon this appeal: First, that the defendant city was not sued by its correct title; secondly, that if there is any liability it is chargeable to the rapid transit commission, and, thirdly, that negligence cannot be imputed to the city of Mew York. On the first ground: It is true that the action was entitled incorrectly, but the “ City of New York ” appeared by its “ Counsel to the Corporation ” as attorney for defendant, entered upon and conducted the trial without objection, perfected its appeal and for the first time raises the objection on appeal. It is too late. The plaintiff’s mistake was condoned by the defendant voluntarily appearing in court and submitting to its jurisdiction. On the second point: Even if the rapid transit commission did construct the culvert, it does not maintain it. The law declared by the cases cited was that the building of the subway was a public work of the State, performed under legislative authority," and that the city had no control over it. Carpenter "v. City of New York, 115 App. Div. 552; Haefelin v. McDonald, 96 id. 213. No matter who constructed it, the city used and maintained it as a part of its'system of sewage;
Gildersleeve, J., concurs; Fitzgebald, J., concurs in result.
Judgment reversed and new trial ordered, with costs to appellant to abide event.