44 N.Y.S. 454 | N.Y. App. Div. | 1897
According to the allegations of the complaint the injury was caused by the negligence of the defendant, and the result of that negligence was clearly a personal injury within subdivision 9 of section 3343 of the Code of Civil Procedure. The action is, therefore, brought to recover damages for personal injury sustained by reason of the negligence of the defendant and it is within chapter 572 of the Laws of 1886, which prescribes that no such action shall
But, passing that point, we are of the opinion that in other respects the complaint is defective. The action is brought to recover damages for the carelessness and neglect of the officers and agents of the city of New York. The allegations of the facts which are alleged to constitute such neglect are found in the fifth paragraph of the complaint. The work which was to be done and for which the city had contracted, was the grading and improvement in other respects of Ninth avenue, and it is alleged that the work was to be done by a contractor with whom the city had entered into an agreement for that purpose. The fifth allegation of the complaint sets up that the cause of the injuries complained of was the neglect of the said contractor, or his servants and agents, to see that the surface water, sewage and drainage, whenever it should accumulate through being impeded by reason of the regulating and grading of Ninth avenue, should have a sufficient outlet and be discharged and carried off, and it is said in the complaint that by reason of that neglect the surface water, sewage and drainage accumulated about the premises occupied by the plaintiff and caused the injuries complained of. From this allegation we see that the proximate cause of this injury was the neglect of the contractor. This neglect was the violation of the duty which the law imposed upon the contractor; it was the act of an independent person for which he was liable, and the city is not liable unless there is disclosed by the other allegations of the complaint some neglect of duty on its part which could be said to be the origin of the neglect of the contractor which was the immediate cause of the injuries sustained. In actions of this nature the law looks to the proximate cause of the injury which is complained of, and if that proximate cause is the result of the action of some independent person, the law looks no further to find a responsible agent who must answer for the injury which his act has caused. Therefore, the contractor
The judgment must be affirmed, with costs, with leave to the plaintiff to amend in twenty days on payment of the costs of this appeal and of the court below.
Patterson, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., concurred in result.
Judgment affirmed, with costs, with leave to the plaintiff to amend in twenty days on payment of the costs of this appeal and of the court below.