Opinion · New York Court of Appeals

The Mayor, C. of Albany v. . Cunliff

Mayor, C. of Albany v. . Cunliff, 2 N.Y. 165 (New York Court of Appeals 1849)

Type: Opinion
Court: New York Court of Appeals
Jurisdiction: New York
Date: 1849-03-05
Topic: general

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 167 The plaintiff's declaration contains three counts. In the first, he in substance alleges that by a certain act of the legislature therein referred to, the defendants were authorized to take possession of the said bridge; that they did take possession of it; that it was then in good order so that it might be crossed and recrossed with safety; whereupon it became and was the duty of the defendants to construct the said bridge so that the same should be in no worse condition than it was at the time they commenced altering the said bridge; and that it then and there became and was the duty of the defendants so to construct the said bridge, that the same might be crossed and recrossed to and from the said pier, with safety and security and without danger. In the second count it is alleged in substance that the defendants were authorized to take possession of the said bridge, and were by the said act required to widen and construct the draw in the said bridge; that they did take possession of the said bridge; whereupon it became and was their duty so to widen and construct the said draw of the said bridge, that the same might with safety and security be crossed and recrossed to and from the said pier. In the third count it is in substance alleged, that the defendants were authorized and directed to alter and enlarge the draw of the said brid…

Citator

Cited by: 31 opinions

THE MAYOR, C. OF ALBANYv. CUNLIFF,2 N.Y. 165(1849)

THE MAYOR, c. OF THE CITY OF ALBANY, plaintiffs in error,vs. SIMON

CUNLIFF, defendant in error.

Court of Appeals of the State of New York.

March Term, 1849

Page 166

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 167

M.T. Reynolds,for plaintiffs in error.S.H. Hammond,for the defendant in error.

CADY, J.

The plaintiff's declaration contains three counts. In the first, he in substance alleges that by a certain act of the legislature therein referred to, the defendants were authorized to take possession of the said bridge; that they did take possession of it; that it was then in good order so that it might be crossed and recrossed with safety; whereupon it became and was thedutyof the defendants to construct the said bridge so that the same should be in no worse condition than it was at the time they commenced altering the said bridge; and that it then and there became and was thedutyof the defendants so to construct the said bridge, that the same might be crossed and recrossed to and from the said pier, with safety and security and without danger. In the second count it is alleged in substance that the defendants were authorized to take possession of the said bridge, and were by thesaid actrequired to widen and construct the draw in the said bridge; that they did take possession of the said bridge; whereupon it became and was theirdutyso to widen and construct the said draw of the said bridge, that the same might with safety and security be crossed and recrossed to and from the said pier. In the third count it is in substance alleged, that the defendants were authorized anddirectedto alter and enlarge the draw of the said bridge; that it thereby became theirdutyto do the same so that it could with safety be crossed and recrossed. The defendants are, in each count, charged with having done the work, but that they did it in such a careless, negligent and improper manner, that the bridge fell,c. The defendants pleaded not guilty, and the burthen of proving all the material facts alleged in the declaration, rested on the plaintiff. What was the plaintiff bound to prove? In order to show a right to recover under his first count, he was bound to prove that it wasPage 168thedutyof the defendants so to construct the said bridge that the same should be in no worse condition than it was at the time they commenced altering the same; or, that it was theirdutyso to construct the said bridge, that the same might be crossed and recrossed with safety; that the defendants did so construct it, that the same was in a worse state and condition than it was when the alteration made by them was commenced, or that it was in such a state that it could not be crossed and recrossed with safety and security; and that owing to the negligent and careless manner in which the work was done, the bridge fell when the plaintiff was crossing it and thereby sustained the injury of which he complains. To entitle himself to recover under the second count, he was bound to prove, that the defendants were authorized to take possession of the said bridge; that they wererequiredby the said act referred to in the first count, to widen and construct the draw in the said bridge; that they did take possession of the said bridge and proceeded so to widen and construct the draw of the said bridge, that the same might with safety be crossed and recrossed; but that regardless of theirduty,they widened and constructed the draw of the said bridge in so negligent a manner that the said draw fell, and the plaintiff was thereby injured. And to recover under the third count, the plaintiff was bound to prove that the defendants wereauthorizedanddirectedto alter and enlarge the draw in the said bridge; that it thereby became theirdutyto do the same so that it could with safety be crossed and recrossed; that they did alter and enlarge the said draw, but they neglected their duty and did not alter and enlarge the same so that it could be crossed and recrossed with safety, but did do it in such a negligent manner that the bridge fell, c.

After the plaintiff closed his evidence, the counsel for the defendants moved for a nonsuit for the reasons stated in the bill of exceptions. The motion was denied, and the defendants' counsel excepted. The judge in his charge to the jury stated to them, that "if they believed that the fall of the bridge was owing exclusively to the negligent and improper manner in which it was constructed by the defendants, that then the plaintiff was entitled to recover." To this part of the charge thePage 169counsel for the defendants excepted. The second and third exceptions may be considered together; as the part of the charge therein excepted to, and the refusal to nonsuit the plaintiff, both rest on the assumption that nothing more was necessary to entitle the plaintiff to recover, than that the defendants paid for building the bridge, and that its fall was owing exclusively to the negligent and improper manner in which it was constructed. And the supreme court in its opinion, say, "So far as this action is concerned, it is enough that the bridge was built by the defendants." If this be the law as applicable to this case, then it would have been enough for the plaintiff to have alleged in his declaration, that the defendants built the bridge, and in such a negligent and improper manner, that it fell while the plaintiff was on it, whereby he was seriously injured. And if the statement and proof of those facts would have entitled him to a verdict against the defendants, then he might have recovered against William W. Van Zandt, who, as appears from the error book, did in fact build the bridge, and who, if any one, was guilty of culpable negligence in the construction of it. But the pleader who drew the declaration in this cause did not so understand the law. He supposed that it was necessary to show that it became and was theirdutyto construct the bridge so that it should be in no worse condition than it was when they commenced altering it; that they were, by a certain act of the legislature,requiredto widen and construct the draw in the said bridge, and that it became and was theirdutyso to widen and construct the draw of the bridge, that it could be crossed with safety; that the defendants wereauthorized and requiredto alter and enlarge the draw of the bridge.

The rule seems to be well settled, that to charge a person in an action on the case for negligence in the performance of any public work, whereby any person has sustained any special damage, "the law must have imposed adutyon him so as to make that neglect culpable." (Esp. N.P. tit. Trespass on the Case,365.) And if the bridge in question was a public bridge, the reason why the plaintiff could not sustain an action against William W. Van Zandt, for having built it in a negligent andPage 170improper manner is, that he could not allege and prove that it was Mr. Van Zandt'sdutyto build it. "No man can be compelled to build or contribute to the charges of building any new bridge, without an act of parliament." (1Bac. Ab. tit. Bridges,330. 2Inst. 701.) If this be true as tobuildinga bridge, it must be equally true as toalteringa bridge. In his first count, the plaintiff has alleged that it was thedutyof the defendants to construct the bridge. In the second count, that it was theirdutyto widen and construct the draw of the said bridge. And in the third count it is alleged that they wereauthorized and directedto alter and enlarge the draw of the bridge. It could not have been the duty of the defendants to construct the bridge, nor to widen and construct the draw of the bridge, nor would they have been authorized anddirectedto alter and enlarge the draw of the bridge, by any thing other than an act of the legislature. The common law imposed no suchdutyon them, nor did it sodirect them. And can it be, that they are liable to the plaintiff, simply because they contracted and paid for building a bridge that was negligently built and fell when the plaintiff was on it? Suppose a traveller on a public road comes to a narrow and deep stream which he cannot cross without a bridge; and he immediately goes to work and makes a bridge over which he with his horse and wagon passes; and shortly after, another traveller attempts to pass over with a span of horses and wagon; but unfortunately the bridge breaks down and both his horses are drowned. Has he a remedy against the man who built the bridge? Why not? Because the law had imposed on him no duty to build it. And so I apprehend the law to be in relation to the defendants. If the law had imposed upon them no obligation to construct the bridge, or to widen and enlarge the draw therein, they must be regarded as mere volunteers and in no way responsible to the plaintiff for what they did or for what they neglected to do.

In an action on the case, all material averments in the declaration are put in issue by the plea. (Chit. on Pl. 372,ed. 1809.) Every averment is material unless it may be struck out as surplusage, and what cannot be so struck out must be proved. Can any averment in this case, made to show that itPage 171was thedutyof the defendants to construct the bridge and to widen and enlarge the draw in the bridge be struck out as surplusage and leave a good cause of action stated in the declaration? If not, then it becomes necessary to inquire whether the plaintiff has succeeded in proving that the defendants were bound to construct or alter the bridge in any way. Immediately before the motion for a nonsuit was made, it was admitted on the part of the plaintiff, that the act of the legislature referred to in the first count, was not passed by a two-thirds vote. That act had been declared void by the court for the correction of errors. And one ground upon which the motion for a nonsuit was made was, that all the counts in the declaration referred to that act for the duty imposed on the defendants to build the bridge. Was that allegation true? In the first count it is referred to by its title. In the second count it is referred to by the words "the said act," no other act having been previously referred to in the declaration. And in the third count, it is alleged that the defendants were "authorized anddirected;" and the plaintiff gave no other act in evidencedirectingthe defendants to do any thing in relation to the bridge. It may then be said that no other act is referred to in the declaration as imposing a duty on the defendants to build or alter the bridge, and as that is void no duty was imposed on them. The question whether it was thedutyof the defendants to construct or alter the bridge was one of the most important questions in issue between the parties; and unless it could be answered in the affirmative, it is not readily perceived how the plaintiff could be entitled to recover.

Other acts of the legislature, and the third section of the defendant's charter, were read in evidence; but no clause or section in either can be found, which imposes on the defendants any duty to construct, to alter, or to keep the bridges over the basin in repair. The third section of the charter gave to the defendants the power, license and authority to make and repair all bridges in the city. This clause has never been understood as imposing any duty on the defendants to make or maintain a bridge over the Hudson river or any part of it. This charter was granted 137 years before the pier or Albany basin werePage 172thought of, and cannot be so understood as to make it the duty of the defendants to construct or maintain one or more bridges over the basin. The act of April, 1823, authorizing the construction of a basin in the city of Albany was also read; but that act imposed no duty on the defendants; their consent to this act was required to give it effect. By the fourth section of that act, it was made the duty of the commissioners named in the first section, to build one or more bridges, when the canal commissioners should require. Thus the legislature with the consent of the defendants directed by whom said bridges should be built. It was suggested on the argument, that this act was void, because not passed by a two-third vote. But what necessity for a two-third vote? No corporation was thereby created, continued, altered or renewed. But were it admitted that the act of 1823 is unconstitutional and void, how will that aid the plaintiff? In that case, no person or corporation has ever had the right to build or maintain a bridge over the basin, if it be regarded as a part of the Hudson river; but if it be a part of the Erie canal, then no bridge can be built over it, except with the consent of a canal commissioner or superintendent of repairs. (1R.S. 240, §§ 191, 192.) An act passed on the 13th of April, 1826, and another passed on the 12th of April, 1842, relating to the city of Albany, were read for the purpose of showing that the common council of the city are commissioners of highways, in and for the city; but no commissioners of highways between Buffalo and the south end of the basin, have a right, without the consent of a canal commissioner or a superintendent of repairs, or without the authority of an act of the legislature, to build a bridge over the canal. It may therefore be affirmed, that there is not and never has been any law which made it the duty or ever gave the defendants authority to make or alter a bridge over the basin; and if so, then the motion for a nonsuit must have been denied, upon the ground stated in the charge to the jury; that "if the fall of the bridge was owing exclusively to the negligent and improper manner in which it was constructed by the defendants, the plaintiff was entitled to recover." I can find no adjudged case, nor any rule in an elementary work, recognizing so broad a ground of liability. IPage 173have found no case in which a person has been held liable for negligence in the performance of any work, unless his negligence was in violation of a contract, express or implied, or of adutywhich was imposed on him by law. In the case ofTheMayor, c. of the city of New-Yorkv.Furze,(3Hill,612,)theplaintiffs in error were held liable, because they neglected a duty imposed on them by law. "In case ofHundyv.The Mayor Burgess of Lyme Regis,(5Bing. 91; 3BarnAdolph. 77; 1Bing. N.C. 222,S.C. in error,) Park, J. who delivered the opinion of the judges, after stating the case, observed that in order to make the declaration good, it must appear, first, that the corporation were under a legal obligation to repair the place in question; secondly, that such obligation was matter of so general and public concern, that an indictment would lie against the corporation for non-repair; thirdly, that the place in question was out of repair; and lastly, that the plaintiff had sustained some particular damage beyond the rest of the king's subjects by the omission to repair." In the case under consideration, the plaintiff did not show that the defendants were under any legal obligation to build or alter the bridge over the basin. Had they refused to alter or build the bridge, they could not have been indicted as having neglected a public duty. I am therefore of opinion that the judgment of the supreme court ought to be reversed.

BRONSON, J.

The pier in the river would have been of little value to the owners, without connecting it with the city by bridges. The act authorizing the work therefore provided for bridges, with draws for the passage of boats and vessels: and the pier commissioners were to provide persons to open and shut the draws; and were to have no tolls for passing either through or over the bridges. (Stat. 1823,p. 129, §§ 4, 5, 9.) The bridges were built by and for the pier owners; and they were of course bound to maintain and keep them in repair. The point has already been adjudged, that the duty lays upon them, and not upon the city. (The Peoplev.Cooper,6Hill,516.)

In 1837, the corporation of the city of Albany widened and reconstructed the bridges, in pursuance of the act of 1835, (Stat.Page 1741835,p. 171,) which provided that the value of the improvement to be ascertained by certain commissioners, should be paid by the pier owners. (§ 2.) The commissioners awarded four thousand dollars to the city for making the improvement. This work, though done by the corporation, was done for the pier owners, and at their expense. They have ever since had charge of the bridge in question; have employed and paid a man for tending the draws, and have made repairs. The duty of maintaining and repairing was just as plainly upon the pier owners after, as it was before the bridge was rebuilt. Indeed, the point was adjudged against them, on indictment for not repairing, seven years after the bridge was rebuilt. (The Peoplev.Cooper, supra.

There is then no color of authority for maintaining this action against the corporation. The city was no more than a mere architect or builder of the pier owners. If it did not build with proper care and skill, it may be answerable to the owners of the bridge, but not to third persons. Their remedy is against the owners of the bridge, who are bound to repair. If the injury to the plaintiff had happened while the corporation was engaged in constructing the bridge, and through any want of care or skill on its part, the city might then have been answerable. But the bridge was completed, and had been in the charge of pier owners, more than three years before it fell and injured the plaintiff. In such a case, there is neither precedent nor principle for allowing a third person to turn from those who are bound to maintain the bridge, and bring an action against the architect or builder. He is only answerable to those for whom he builds. He is not answerable to them, if he builds according to his contract or duty, however frail the structure may be. But the owner, on whom the duty of maintaining rests, is answerable to third persons for the sufficiency of the work, whether he has been injured by the builder or not.

A party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land. But it is only where he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent; (Roswellv.Prior,2Salk. 460; 1Ld. Ray. 713,Page 175S.C.; Bluntv.Aikin,15Wend. 522;) or where he conveys the property with covenants for the continuance of the nuisance. (Waggonerv.Jermaine,3Denio,306.) No case has been produced and I hazard little in saying that none can be found, where an action like the one before us has been maintained against a party who was not under a legal obligation to repair, or see that repairs were made. In this case, the city was neither under obligation to repair, nor had it the right to make repairs.

It is a sufficient answer to this action, that every count in the declaration is based upon the act of 1835, which has been adjudged to be unconstitutional and void.^fn(a)Stantonv.Allen,5Denio's R. 433.) But I have assumed that the act was valid; and then there is no foundation for the action.

I am of opinion that the judgment of the supreme court is erroneous, and should be reversed.

STRONG, J. [After stating the pleadings and evidence.]

By the act relating to the Albany basin, passed April 5th, 1823, (but as it would seem not by a two-third vote,) commissioners were appointed to raise, by subscription, moneys to be expended in the construction of a mole or pier, so as to comprise the basin; they were to select three of their number to be the acting commissioners, one of whom was to be designated as superintendent, who was to collect and receive the moneys to be subscribed, and to pay the same out for the necessary materials and labor, and to be accountable to the board of commissioners: the acting commissioners were authorized to make all the requisite contracts, and to employ the agents, engineers, and laborers. The board of commissioners were required (when the canal commissioners should decide that public convenience should require it,) to construct three bridges across the basin with a draw for each, and to provide some person to open and shut the draw bridges, but no one was to be charged for passing through them. As soon as the work should be finishedPage 176the commissioners of the land office were required to grant by letters patent, to the board of commissioners appointed by the act, or to the survivors or survivor of them, as joint tenants,the land under the water of the Hudson river, occupied by themole or pier and sloop lock,subject to the conditions and reservations mentioned in the act, but no toll was to be exacted by the commissioners for any person passing over the bridges, nor any wharfage from the canal boats or rafts entering from the canal, but wharfage was to be paid to them on all other vessels navigating the Hudson riverand entering into the basin,one half of which was to be paid to the proprietors of the pier. The pier was to be divided into lots which were to be sold and the proceeds divided among the proprietors. A sloop lock was to be made for the canal boats, and the canal commissioners were to charge tolls on all canal boats entering through it into the basin, and to pay the net avails to the agent of the owners of the pier, to be divided among them. The grant by the commissioners of the land office was to be upon condition that it should be void if the state should refund to the commissioners appointed under the act, the amount expended by them in erecting the mole or pier, bridges and sloop lock within five years. The adjoining proprietors were to have their damages assessed and paid by the commissioners, and the amount was to be deducted out of the wharfage money. The corporation of Albany was authorized to assent to this act, and the common council did so on the 8th of April, 1823.

By the act of April 27th, 1835, (which it was admitted at the trial was not passed by two-thirds vote,) the common council of Albany were authorized, among other things, to widen and construct the draw in the bridges over the basin, and the passages under the same, and it was required that after they should be widened they should not be left in a worse state and condition than they should be in at the time the alteration should be commenced. The improved value, when ascertained by commissioners to be appointed for the purpose, was to be paid by the pier owners, and the bridges, after the improvement,were tobe maintained, kept in repair, and tended as they were by lawrequired to be at the time of the passage of the last act. ThePage 177damages of the owners of the adjoining lands were to be paid by the owners of the buildings, lots, wharves, docks and pier lots, benefited by the improvement, who were also to pay all the expenses of such improvement except such as were to be defrayed by the pier company. The common council of Albany, early in 1837, passed an ordinance for building the bridge in question, pursuant to the act of April 8th, 1835. In January, 1837, they made a contract for the construction of the bridge with William W. Van Zandt, who was to perform the labor and furnish the materials. He did so, and as it would appear under the supervision of a committee of the common council, of which Col. McKown was chairman. That gentleman was apprized at the time by the witness Baldwin, and another witness, that some of the timbers of which the bridge was constructed were insufficient. After the bridge had been finished the pier company paid $4000 for the increase in its value, took possession and assumed the control of it, and were continuously in possession of it until and at the time of the accident of which the plaintiff complains. The jury have found that by the carelessness of the defendants in constructing the bridge with weak timbers, it broke and injured the plaintiff in the manner stated in his declaration.

The principal question discussed on the argument was whether, under the circumstances of this case, the plaintiff could maintain his action against the defendants. The act of April, 1835, not having been passed with the assent of two-thirds of the members elected to each branch of the legislature, was unconstitutional, if its effect would be to alter the powers of the corporation. (Const. of New-York, art. 7, § 9.) That act was certainly designed to clothe the corporation with new powers, and so far to alter its charter. The change was of a temporary character, but the constitution makes no difference between that and a more permanent alteration. The evils which it was intended to prevent may readily emanate from an inconsiderate grant of temporary powers, and the probability of improvident legislation is much greater in such case than where it is intended to make a durable change. It was said, however, that the assent of the common council estopped the corporationPage 178from raising this objection. That would be true where the assent is given by persons acting in their own behalf, and who have themselves to pay the damages resulting from their misconduct. They would have of course the right to waive any objection, and ought to be considered as doing so in all cases where they assume the duty, and others suffer directly from their negligence in performing it. But it is I conceive different with a corporation. There the officers act for their constituents, who have to pay when they are responsible at all, and such officers are limited in their legitimate action to the powers conferred by their charters. So long as they confine their agency to such powers, their constituents are responsible for their misfeasance or carelessness, for the plain reason that the constituents have selected the officers, and have intrusted them with the performance of the duties. But the voters cannot, with propriety, be supposed to elect their officers with the intent that they should exceed their legitimate powers; and should such officers do so, whatever may be the rule as to themselves individually, their constituents never having even impliedly given their assent to the act, should not be holden responsible for the consequences. If the common council could not, under the circumstances, bind the corporation expressly, a fortiori they could not conclude them by way of estoppel. The rule, although it may sometimes operate harshly, is a safe and sound one, and should be applied uniformly to all cases of misconduct in persons acting in a representative character, where they travel beyond their legitimate powers.

But it was said that the defendants are liable in the present action on the ground that their charter has conferred upon them, as commissioners of highways, the powers of constructing and superintending the bridge within their corporate limits. To this there are two answers, either of which is sufficient; first, the declaration does not seek to charge them in that capacity; and secondly, their charter refers only to public bridges, and this is a private one. The bridge in question was built for the Pier Company, and was at the time of the accident their property and under the superintendence of their agent. It was undoubtedly used by the public, and so are many franchises, such asPage 179ferries, turnpikes and rail-roads, belonging to individuals and corporations, for the construction and proper management of which the owners and not the public officers having charge of correlative subjects are responsible. It is not material on this point to inquire whether the Pier Company was a corporation or an unincorporated association of individuals. In either capacity they could hold the property, and it is quite evident that it was in their possession and beyond the control of the defendants.

If the act of April, 1835, was unconstitutional, and the defendants are not estopped from availing themselves of that objection, it would follow that the plaintiff cannot sustain this action; but as there may be a difference of opinion on this point it is proper, and may be necessary, to inquire whether, supposing that the act was constitutional, the defendants are responsible to the plaintiff under the circumstances of the present suit. The declaration asserts that it was the duty of the defendants so to construct the bridge that it might be crossed without danger. If so, that would authorize a suit by any one to whom they owed such duty and who had suffered by reason of its non-performance, but most assuredly not by a stranger. To whom, then, was the obligation on the part of the defendants (if any) to build a safe bridge, due? Not certainly to the plaintiff as one of the public, for the bridge was neither built nor paid for by the people of the state, nor were the defendants the agents of the people in this matter; but the work was performed and the materials were found for the Pier Company. Although the agents were nominally selected by the lawmakers, yet the selection was doubtless made at the suggestion of the company; they accepted and paid for the work when it was completed, and it has since been in their possession and under their control, and so far as the evidence goes without any interference by the common council of Albany. The case ofThe Mayor, c. of New York,v.Bailey,(2Denio,433,) is in point to show that the common council were under these circumstances the agents of, and owed the duty to, the Pier Company, and that consequently such company could alone maintain the action where the complaint was simply for a breach of such duty.Page 180

The court below base the alleged responsibility of the defendants in this suit on the general ground that where one party sustains an injury by the misfeasance of another the sufferer may maintain an action against the wrongdoer for redress. That rule operates where the injury is effected directly by the wrong, or where it results from the malconstruction of some object while it is in the possession or under the control, or in any manner used under the agency or instructions of the party originally in fault. But I know of no case where it has been held that a stranger can recover for damages sustained by reason of the defective construction of an object of the builder, after the title to the object has changed, and it has passed out of his possession, and is no longer subject to his control, and in no way used pursuant to any authority or directions from him. A man builds a carriage carelessly with defective materials. He sells and parts with it, and the purchaser lends it to a friend. The carriage, by reason of the original defect, breaks down, and the friend is injured: can he recover his damage against the maker? A carpenter is hired to build a barn and furnish the materials. He carelessly places a timber slightly defective under the mow, and the barn is accepted by the owner. Some years afterwards the timber, owing to its original defect, breaks and falls upon a laborer, who sustains a serious injury; can he recover of the carpenter? Or, to take a case more nearly parallel with the one under consideration. A turnpike company contract with some one to build a bridge over a creek which their road crosses. The builder erects a defective bridge, and it is accepted and used by the company. Some time afterwards the bridge, while one is travelling over it, gives way by reason of the original defect, and the traveller is injured; can he sustain an action against the builder? I know of no decision which would authorize a recovery under such circumstances. The reason why an action cannot be sustained in such a case is that there is no connection between the wrong done and the person whom it is sought to charge for the consequences. The wrongdoer has not at the time any control over the subject matter, or any power or right to remedy the evil. The damage in all such cases arises in fact from the continued use ofPage 181the defective subject, and with that the builder who has parted with the title, possession and control of it, has not and cannot have any thing to do. The entire agency is at the time in the existing proprietors by whom or through whose means the wrong is perpetrated. The principal point was decided inBluntv.Aiken,(15Wend. 522.) In that case the defendant, who was at the time the owner of the land, had wrongfully built his mill dam some three or four feet higher than another which had formerly been in the same place. He afterwards parted with the property to his sons, and while it was in their possession the water rose so high, in consequence of the addition to the dam made by the defendant, that it overflowed the plaintiff's land. It was held that as the defendant had parted with the property and others were in possession of it, occupying it as their own when the injury was sustained, the defendant was not liable. That case was not overruled nor its authority shaken by the subsequent decision of the same court inWaggenerv.Jermain,(3Denio,306.) There it was held that the creator of a nuisance who had sold the property on which it was situated, with a warranty for the continued enjoyment of itas used at the time,was responsible for damages sustained subsequent to his conveyance. The court place their decision on the ground that the covenant of warranty was a clear and strong affirmance of the nuisance in the possession and enjoyment of the grantee. It is unnecessary to inquire whether the reason given in that case was sound, or the decision right. It is sufficient for my present purpose that neither militates against the doctrine which I have laid down. In the case which I am now considering the defendants had nothing to do with the continuance. of the defective bridge, and cannot in my opinion be made responsible for any damage consequent upon such continuance. I am far from being inclined to extend the protection of the law to those who are guilty of negligence in the performance of their engagements or duties. We shall repress that effectually, and, what is of great consequence, appropriately, by holding the offending parties rigidly responsible in cases where they have the control of the subject matter, or the persons with whom they deal. To go further would be to stretchPage 182the rules of law to meet the hardship of individual cases, which I am never disposed to do, however strongly my sympathies may be enlisted for the sufferers.

Upon the whole, I think that the learned judge erred in that part of his charge which affirmed the responsibility of the defendants, after they had surrendered the bridge to the Pier Company, to third persons, and that the judgment must therefore be reversed.

Judgment reversed.¹

The reporter is not informed that a majority of the court placed the decision of the case upon any other ground than the one here referred to. ↩