Van Wagenen v. Kemp

14 N.Y. Sup. Ct. 328

Opinion

Davis, P. J.:

The authorities cited by the court below show that a joint action will lie in such cases as this, upon the averment and proof of sufficient facts. (Colegrove v. The New Haven Railroad Company and another, 20 N. Y., 492; Phelps v. Wait, 30 id., 78; Davenport v. Ruckman and The Mayor, etc., 37 id., 568; Code, § 167.)

The complaint in this ease contains this allegation: “ That the said municipal corporation and said Kemp carelessly and negligently allowed and permitted the construction of the said insecure and unsafe bridge and platform, in the said public avenue and highway, over the excavation aforesaid.” This is an averment of joint misfeasance. The demurrer admits the truth of the allegation, and it admits also the allegations that plaintiff suffered injury by reason of such joint negligence and wrong. It may be that on the trial the plaintiff will fail to satisfactorily establish the joint liability, but with the above quoted allegation of the complaint interwoven into the woof and warp of its texture, we cannot hold that the demurrer was improperly overruled.

Order affirmed, with the usual leave to answer over on terms.

Brady and Daniels, JJ., concurred.

Order affirmed, with the usual leave to answer over on terms.