Jewell v. City of Mount Vernon

Appellate Division of the Supreme Court of New York

Jewell v. City of Mount Vernon

91 A.D. 578, 87 N.Y.S. 120

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1904

StatusPublished

This text of 91 A.D. 578 (Jewell v. City of Mount Vernon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jewell v. City of Mount Vernon, 91 A.D. 578, 87 N.Y.S. 120 (N.Y. Ct. App. 1904).

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Opinion

Jenks, J. :

The plaintiff complains that the defendant so negligently repaired a street as to divert surface water, which naturally flowed in the gutters, into his house. He has recovered a judgment for injuries to chattels stored in his cellar. The plaintiff read in evidence a coil-tract for the work which shows that it was done by an independent contractor. The corporation counsel requested the court to charge' that “ the contractor (Light) contracted between him and the city of Mount Vernon for the work at which this accident occurred, Was an independent contractor.” And the learned, court, under exception, replied: “ I decline to charge that in the sense of being to the ; extent that it relieved the city of liability as already charged.”

But reference to the charge fails to show that the learned court had instructed the jury as to- the liability of the city for its negligence, in view of its employment of the independent contractor. The case was submitted without reference to the element of an independent contractor, save as to the question of notice. I think that under the request the defendant was entitled to have the court charge the rule laid down in Uppington v. City of New York (165 N. Y. 222, 233) for the reason that the municipal liability is thereby limited.

The judgment and order should be reversed, and a new trial ordered, costs to abide the event.

All concurred.

Judgment, and order of the Westchester Oounty Court reversed and new trial ordered, costs to abide the event.

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Jenks, J. :

The plaintiff complains that the defendant so negligently repaired a street as to divert surface water, which naturally flowed in the gutters, into his house. He has recovered a judgment for injuries to chattels stored in his cellar. The plaintiff read in evidence a coil-tract for the work which shows that it was done by an independent contractor. The corporation counsel requested the court to charge' that “ the contractor (Light) contracted between him and the city of Mount Vernon for the work at which this accident occurred, Was an independent contractor.” And the learned, court, under exception, replied: “ I decline to charge that in the sense of being to the ; extent that it relieved the city of liability as already charged.”

But reference to the charge fails to show that the learned court had instructed the jury as to- the liability of the city for its negligence, in view of its employment of the independent contractor. The case was submitted without reference to the element of an independent contractor, save as to the question of notice. I think that under the request the defendant was entitled to have the court charge the rule laid down in Uppington v. City of New York (165 N. Y. 222, 233) for the reason that the municipal liability is thereby limited.

The judgment and order should be reversed, and a new trial ordered, costs to abide the event.

All concurred.

Judgment, and order of the Westchester Oounty Court reversed and new trial ordered, costs to abide the event.

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91 A.D. 578, 87 N.Y.S. 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jewell-v-city-of-mount-vernon-nyappdiv-1904.

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