Gilmartin v. Mayor of New York

55 Barb. 239, 1869 N.Y. App. Div. LEXIS 93

• Court: New York Supreme Court
• Decided: June 7, 1869
• Status: Published

Opinion

By the Court, Geo. G. Barnard, J.

The defendants had sole charge of the city hall park, and were bound to so manage it that life should be protected. If the pole, the removal of which caused the injury to the plaintiff’s daughter, was dangerous, the defendants were bound to remove it. If for any reason the defendants wished its removal, they had the power to remove it. In any case, they were hound to remove it carefully. The defendants’ gardener, on removing it, did it so unskillfully that it was precipitated against a telegraph pole, which was thereby broken off and cast against the plaintiff’s daughter, causing her death. The pole which was removed had been put up for a specific purpose, which had ceased to exist, and it appears to have been dangerous, as it broke into pieces in falling. Under these circumstances, the gardener was justified in the removal, as to the defendants, without an express order, and this would make the defendants liable if the act was unskillfully done. (Harlow v. Humiston, 6 Cowen, 189.)

[New York General Term, June 7, 1869.

It is entirely immaterial whether the injury was caused by the liberty pole, directly, or by the telegraph pole being driven by the liberty pole. It was the unskillful removal of the liberty pole which caused the injury.

Judgment affirmed, with costs.

Clerke, Geo. G. Barnard and Cardozo, Justices.]