Frank Comesky, for applicant. George A. Blauvelt, for superintendent. MCCAULEY, J. This is a motion to confirm the report of three commissioners appointed by an order of this court dated September 19, 1910, under section 193 of the highway law, to determine upon the necessity of laying out a public highway in the town of Clarkstown and to assess the damages occasioned thereby. The commissioners, having viewed the proposed highway and the land to be taken therefor, and having heard the allegations and proofs of the parties, have certified and reported to this court that in their opinion it is necessary and proper that the highway be laid out, but that no damages will result to the property owners, to whom they accordingly award no compensation. The motion is made by the appli cant, pursuant to the provisions of section 199 of the statute above. mentioned, and is opposed by the town superintendent, and by the American Ice Company and Charles W. Bedford, through whose lands, respectively, the proposed highway will pass, both of whom have filed exceptions to the report. But two objections were urged against the confirmation of the report upon the oral argument and in the briefs submitted, namely: (1) That this court was without jurisdiction to appoint the commissioners, for the reason that the application for their appointment was not made within 30 days after presenting the application to the town superintendent as required by said section 193; and (2) that the commissioners erred in deciding that the property owners were entitled to no compensation for the land taken, and that in arriving at their decision they erroneously and in violation of the provisions of the condemnation law (Code Civ. Proc. § 3370) deducted from the value of the land taken certain benefits, real or supposed, which the owners may derive from the public use for which the land is to be taken. Upon an application to confirm the decision and report of the commissioners, this court has power to review all the proceedings, whether such proceedings relate to the merits of the application or otherwise. People ex rel. Hanford v. Thayer, 88 Hun, 136, 34 N. Y. Supp. 592; Matter of Lawton, 22 Misc. Rep. 426, 50 N. Y. Supp. 408. Section 194 of the highway law provides that the commissioners shall, before entering upon the discharge of their duties, take the constitutional oath of office. See, also, Code Civ. Proc. § 3370. It appears from the record before me that they failed to comply with this statutory requirement, and their proceedings are therefore, in my opinion, ineffectual and void. For this reason it is needless to consider and discuss the objections above referred to. The only oath or affirmation prescribed by the Constitution of this state (article 13, § 1) is as follows: "I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the state of New York, and that I will faithfully discharge the duties of the office according to the best of my ability." The Legislature undoubtedly had the right to prescribe the form of oath or affirmation to be taken by the commissioners, and, the statute being mandatory, there must be a substantial compliance with its provision. The commissioners, obviously overlooking through inadvertence this statutory requirement, took and subscribed the following oath: "We [here appear the names of the commissioners], commissioners appointed in the above-entitled matter by an order of this court bearing date the 19th day of September, 1910, being duly sworn, each for himself, do solemnly swear and declare that we will faithfully and fairly discharge our duties upon this commission, and will make a just and true report according to the best of our understanding." It will be observed that they do not swear or affirm that they will support the Constitution of the United States, or the Constitution of this state; and hence they never qualified, and all their subsequent proceedings were without jurisdiction and void. Matter of David, 4! Misc. Rep. 192, 89 N. Y. Supp. 812; People v. Connor, 46 Barb. 336. The parties to the proceeding did not waive the constitutional oath. Indeed, the record does not disclose whether they knew the commissioners had taken the oath required by law or not. They had the right to assume that the commissioners had complied with the statute and taken the constitutional oath of office. Moreover, the parties to this proceeding had no right to waive such an important and necessary statutory requirement. The whole town had an interest in the proposed highway, and had a right to require that the proceedings should, in all material respects, conform to the requirements of the statute which, in effect, declares that the commissioners are incompetent to act as such until they have taken the prescribed oath. It was an act necessary to give them jurisdiction to proceed in the discharge of their duties, the omission of which rendered all their acts coram non judice, and void. People v. Connor, supra. It has been held that, where the form of oath to be taken by assessors is prescribed, it must be followed, and that any material deviation from it will invalidate the assessment. Shattuck v. Bascom, 105 N. Y. 39, 12 N. E. 283; Hinckley v. Cooper, 22 Hun, 253. For these reasons, the proceedings of the commissioners and their report must be vacated and set aside. An order to that effect may be entered upon notice. Report of commissioners vacated and set aside. WHITE v. STATE. (Court of Claims of New York. March 13, 1911.) (Syllabus by the Court.) CANALS (§ 30*)-USE OF FOOTBRIDGE-INJURIES TO PEDESTRIAN-LIABILITY OF STATE. Where a footbridge over a canal is in process of reconstruction, it is not regarded to be as safe as a completed footbridge; and one using the same will not be permitted to assume that the footbridge is as safe as a completed bridge would be, and must exercise reasonable care under the circumstances of its condition. [Ed. Note. For other cases, see Canals, Dec. Dig. § 30.*] Claim of Mary J. White, administratrix of John Watson., against the State of New York. Dismissed. Costello, Burden, Cooney & Walters, for claimant. Thos. F. Carmody, Atty. Gen., Frank W. Brown, Deputy Atty. Gen., and M. H. Quirk, Asst. Atty. Gen., for the State. RODENBECK, J. The claimant's intestate was injured September 30, 1908, on a footbridge over the Oswego Canal at North Salina street in the city of Syracuse. The bridge spanning the canal at this place is a bascule bridge, and was hung up at the time of the accident. It was in process of construction, and during this period there was at footbridge on the east side of the bridge, elevated above the surface of the street, and approached by means of steps. The contract for the construction of the bridge required some adjustment of the existing footbridge to the new conditions. There was an iron railing on the east side of the footbridge, which, however, was not continued down the north steps. In lieu of a railing, a plank about 2 inches by 8 inches had been placed along the edge of the steps. The intestate and a companion were out sight-seeing, and went to the bridge for the purpose of looking it over. As they approached the north end of the footbridge, the intestate called his companion's attention to something on the bridge which was above the level of their heads, and as his companion turned in that direction the intestate fell over the temporary railing, striking on his head and causing his death. The place at which the intestate fell from the bridge was at the first descending step, where the plank railing would not reach much above his knee. It was not, however, the absence of a sufficient guard rai! that caused the intestate's injuries, but his own inattention. He did not stumble over any imperfection. The intestate's companion says that he sort of reached for the rail and fell over, while another witness said that he threw both arms in the air and fell. It seems a reasonable conclusion from all the facts and circumstances that, had the intestate observed such care as was reasonably to be expected under the circumstances, he would not have met with the injuries. While there was a duty resting upon the state to see that the footbridge was in a reasonably safe condition, there was also an obligation on the part of claimant's intestate to use reasonable care. The care which the claimant's intestate was required to observe was to be measured by the conditions. He was familiar with the work that was in progress, could see the footbridge was in process of reconstruction, and it was his duty to use reasonable care in crossing. The rule applicable to this case is clearly laid down in Nolan v. King, 97 N. Y. 565, 571, 49 Am. Rep. 561. In that case the plaintiff fell while descending the steps of a temporary sidewalk over an excavation for a building. The steps were of unequal height and width, and there was no guard rail at the side. The court charged the jury that the defendant was under obligations to have the bridge so constructed that For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the plaintiff would not be subjected to any more personal risk than if the sidewalk had been there, instead of the bridge. This rule the court said was erroneous. Judge Finch, writing the opinion of the Court of Appeals, said: "It is not to be expected, and cannot be required, that the temporary cov ering shall equal in safety and convenience the sidewalk removed, or that passengers may cross with as little heed and care as upon the completed pavement, and the duty of the builder is not to be thus measured until his work is done and opened to public passage as a completed sidewalk. The necessi ties of building involve some inconvenience to the public. Temporarily it must be borne, in view of the other public benefit resulting from freedom of construction, and where it occurs the traveler is bound to observe its presence, and give to his passage some of the care and observation which he may assume to be unnecessary upon the completed sidewalk." In the case of Keating v. Metropolitan Railway Co., 105 App. Div. 362, 94 N. Y. Supp. 117, the degree of care required in a case like the one at bar is clearly set forth by Mr. Justice O'Brien. In that case a temporary passageway for teams and pedestrians had been constructed across a street, and the plaintiff caught her foot in a knothole in one of the boards of which the passageway was constructed, and was thrown down and injured. The court said that, when the plaintiff observed that the permanent surface of the highway had been replaced by a temporary structure, she could not heedlessly disregard the precautions which the obvious situation suggested, and assume that the highway was as safe as it was in its original condition. The court said (105) App. Div. 365, 94 N. Y. Supp. 119): "No presumption arises from the mere happening of the accident nor upon proof of negligence on the part of the defendant can it be presumed that plaintiff was free from blame. Weston v. City of Troy, 139 N. Y. 281 [34 N. E. 780]; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248. She was bound to establish affirmatively that she used care and caution which an ordinarily prudent person would have used under the conditions which were shown to have existed. She knew that the roadway had been torn up, yet it does not appear that she took any precautions whatsoever to observe the condition of the temporary covering which had been placed over it. There is no evidence that she looked at the planks to find out how they were fastened in place, or whether there were any defects in them, and under such circumstances the jury might have found that she did not use the care and caution which the situation demanded of an ordinarily prudent person." Whalen v. Citizens' Gaslight Co., 151 N. Y. 70, 45 N. E. 363; Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401; Weston v. City of Troy, supra; Coolidge v. City of New York, 99 App, Dia 175, 90 N. Y. Supp. 1078; Williams v. Village of Port Leyden, 62 App. Div. 490, 70 N. Y. Supp. 1100 It does not appear in the case at bar that the claimant's intestate used any precaution in crossing the footbridge. He went there for the purpose of looking over the new bridge, and his attention was undoubtedly directed from the footbridge to the bridge itself. He was under obligations to observe where he was going under the circumstances, and in this claim cannot rely upon the usual rule applicable to permanent sidewalks. The circumstances of the accident, as detailed by the companion of the intestate and other witnesses, do not show the absence of contributory negligence as laid down in the rule in the cases cited, and the claim for that reason should be dismissed. GREENBAUM v. GRAMMER. (Supreme Court, Appellate Term. April 8, 1911.) TRIAL (§ 109*)—OPENING STATEMENT-Judgment. Where an action was brought on subscription to shares of capital stock, the complaint alleging that the money was to be paid to a trustee, to be held for the consummation of the agreement, and that the corporation had duly performed all the conditions of the agreement on its part, and the answer denied the allegations of performance, and as a separate defense pleaded fraud in procuring the subscription, and upon the trial the defendant's counsel in his opening statement only referred to the defense of fraud, it was error for the court to enter judgment on the opening statement, as it was necessary for plaintiff to prove that the corporation had duly performed all the conditions of the agreement on its part; that being denied in the answer. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 270; Dec. Dig. § 109.*] Appeal from City Court of New York, Trial Term. Action by Nathan Greenbaum, as receiver of the property of the National Standard Brewing Company, against Richard Grammer. From a judgment of the City Court on the pleadings, and on the opening address of defendant's counsel, defendant appeals. Reversed, and new trial ordered. Argued before SEABURY, LEHMAN, and BIJUR, JJ. Jacob Stiefel (Charles Simon, of counsel), for appellant. William L. Seyfarth (Gustav Gunkel, of counsel), for respondent. SEABURY, J. This action was brought to recover $1,200, alleged to be due on a subscription to 15 shares of the capital stock of the National Standard Brewing Company, of which the plaintiff had been appointed receiver in proceedings supplementary to execution. The complaint alleges that the money was to be paid to a trustee, to be held for the consummation of the agreement, and also that the corporation "has duly performed all the conditions on its part under the said agreement." The answer denies the allegations that the corporation performed. on its part the conditions of the agreement, and as a separate defense pleaded that the subscription was induced by fraud and deceit. Upon the trial the defendant's counsel, in his opening address to the jury, referred only to the separate defense of fraud. At the close of his address, and before any evidence was presented, the plaintiff moved for judgment in his favor on the pleadings and on the defendant's opening address. This motion was granted, subject to the defendant's exception, and from the judgment entered upon such direction the defendant appeals to this court. We think that the court erred in granting the motion. Under the complaint it was necessary for the plaintiff to prove that "the said National Standard Brewing Company has duly performed all the conditions on its part under said agreement." This allegation was put in issue by the answer, and the mere fact that in his opening address *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 128 N.Y.S.-39 |