Vogel v. Mayor, etc., of New York.

make these excavations in the street and to thus turn the water upon plaintiff's lots, when it had the power and right, at any time within the fourteen years, to take charge of the work, complete the contract and thus protect the plaintiff's property against injury.

The city owed plaintiff a duty, and the breach of that duty imposes the liability. The city is in the same position as it would have been if it had contracted for making the very excavations, and then had left them to do the injury complained of. This bears some analogy to the case of a continuing nuisance. One must not suffer a nuisance to continue on his premises to the injury of others, although he was not responsible for its creation. Osborn v. Union Ferry Company, 53 Barb. 629; Burgess v. Gray, 1 C. B. 578. If one employs a contractor to do a work not in its nature a nuisance. but when completed it is so by reason of the manner in which the contractor has done it, and he accepts the work in that condition, he becomes at once responsible for the creation of the nuisance, upon a principle very similar to that which makes a principal responsible for unauthorized wrongs committed by his agent by ratifying them. Boswell v. Laird, 8 Cal. 49.

This is not like the case supposed of a convulsion of nature causing these chasms and thus turning the water, and the responsibility of the city is not such as it would have been in that case. Here the excavations were made by agencies put in motion by the city, in the execution of a contract, for it, upon its land. The excava-, tions were not necessarily damaging to the plaintiff; if the work had been carried to completion in a reasonable time, no serious damage would have been done, as the plaintiff's houses were not finished until 1859, nearly a year after Kinsley's contract was to have been completed. But the damage came because the excavations were needlessly, negligently and heedlessly suffered to remain in the street for an unreasonable length of time, and for that responsibility attached to the city.

We are therefore of opinion that upon the facts which the evidence tended to establish, there is no rule of law which shields the city from liability to the plaintiff for his damages, and that the nonsuit was improperly granted.

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

All concur, except MILLER, DANFORTH and FINCH, JJ., dissenting. Judgment reversed.

Vogel v. Mayor, etc., of New York.

NOTE BY THE REPORTER. - See Sturges v. Theol. Education Society,130 Mass. 414; 8. C., 39 Am. Rep. 463, and note, 464. The case of Percival v. Hughes, referred to in that note, has since been affirmed by the House of Lords (49 L. T. Rep. [N. S.] 189), and the following are extracts from the opinions:

By Lord BLACKBURN. "The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party wall which was between the plaintiff's house and the defendant's, so that if one fell the other would be lamaged. The defendant had a right so to utilize the party wall, for it was his property as well as the plaintiff's; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty toward the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party wall, exposing it to this risk. If such a duty were cast upon the defendant he could not get rid of the responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfill the duty which the law cast on himself, and if they so agreed together, to take an indemnity to himself in case of mischief coming from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty and liable for the consequences if it was not fulfilled. This is the law, I think, clearly laid down in Pickard v. Smith, 10 C B. (N. S.) 473, and finally in Dalton v Angus, 6 App. Cas. 740; 44 L. T. Rep. (N. S.) 844. But in all the cases on the subject there was a duty cast by law on the party who was held liable. In Dalton v. Angus, and in Bower v. Peate, 1 Q. B. Div. 321; 35 L. T. Rep. (N. S.) 321, the defendants had caused an interference with the plaintiff's right of support. CoCKBURN, C. J., it is true, in Bower v. Peute, after showing this, says: The answer to the defendant's contention may however, as it appears to us, be placed on a proper ground, namely, that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else, whether it be the contractor employed to do the work from which the danger arises, or some independent person to do what is necessary to prevent the act he has ordered to be done from becoming wrongful.' I doubt whether this is not too broadly stated. If taken in the full sense of the words, it would seem to render a person who orde:s post horses and a coachman from an inn bound to see that the coachman, though not his servant, but that of the innkeeper, used that skill and care which is necessary when driving the coach to prevent mischief to the passengers. But the Court of Queen's Bench had no intention, and indeed not being a court of error, had no power to alter the law laid down in Quarman v. Burnett, 6 M. & W. 499, But if I am right in thinking that the defendant, in consequence of his using the party wall of which the plaintiff was part owner, had a duty cast upon him by law similar to that which in Dalton v. Angus, ubi. sup., it was held was cast upon the defendant in that case, in consequence of his using the foundations on which the plaintiff had a right of support, it is not necessary now to inquire how far this general language should be qualified I do not think the case of Butler v. Hunter, 7 H. & N. 826, is consistent with my view of the law. I do not know whether the Court of Exchequer meant to deny that such a duty was cast upon the defendant in that case, or meant to say that he might escape liability by employing a contractor. If either was meant by the Court of Exchequer I am obliged to differ from them. If this be so, the question is, I think, narrowed to this: was the operation during which the defendant's duty required him to see that reasonable skill and care should be used, over at the time when those engaged in the work cut into the party wall between the defendant's house and Barron's; for it is not disputed that there was a want of skill in doing this and that it caused the damage, and it is not disputed that the men who did it were intending to carry out the work on which they were employed." Lord WATSON: "I agree with your lordships that it was the duty of the appellant, in carying out his building operations, to see that reasonable precautions were taken in order to protect from injury the eastern wall of his tenement, of which the

respondent was part owner. The appellant does not deny that many of the operations which he contemplated, and had employed a contractor to execute, were such as would necessarily, or possibly, imperil the stability of the party wall if no precautions were used, nor does he dispute that it was incumbent upon him to see that these operations were safely carried out by the contractor. What he did allege and offer to prove before the jury was that all these hazardous operations had been brought to a safe termination months before the occurrence which resulted in damage to the respondent's house. *** But I am not satisfied that the fitting up of a wooden staircase from the basement floor of the appellant's tenement to the cellar below was an operation which could occasion no risk to the party wall. ・・・ The statement which was very strongly and repeatedly made regarding it was that the cutting of the wall was unnecessary and was not only unauthorized but positively forbidden. Unnecessary it certainly was, because the staircase might have been securely fixed without interfering with the wall. Unauthorized and forbidden it also was in this sense, that by the terms of the contract and relative specification the contractor was bound to leave the wall untouched. But the terms of the contract and specification are, in my opinion, of no relevancy as in a question with the respondent. If there were any reason to suppose that an ordinary workman intrusted with the job might cut into the wall, the appellant took a very proper precaution when he bound his contractor not to cut it, but he failed in his duty to the respondent when he permitted the contractor and his workmen to neglect that precaution. I am of opinion that the appellant could not establish a good defense to the respondent's claim by simply proving that it was not in the least necessary to cut the wall, and that the contractor was under an obligation not to do it. It appears to me that he could not escape from liability unless he further proved that it could not have been reasonably anticipated that any workman of ordinary skill in such operations, who was neither insane nor dishonest, would have dreamt of cutting the wall. I can find no allegation to that effect, nor do the statements made by the appellant's counsel appear to me to sustain the inference that the cutting of the wall was an act of that improbable description. It is not said that the contractor's workmen were deficient in ordinary skill, or that their act, however ill-judged, was dictated by any other motive than a desire to perform their work efficiently. In these circumstances the only inference in fact which I can draw is, that these men ought to have been specially directed not to interfere with the wall, and that care should have been taken that they obeyed the direction. These precautions ought, no doubt, to have been taken by the contractor, but in accordance with the principle laid down in Bower v. Peate, ubi sup., and Dalton v. Angus, ubi sup., it was no less the duty of the appellant, as in a question with the respondent, to see that they were strictly observed." Lord Fitzgerald: "The conclusion I have reached is, that the defendant had undertaken a work which, as a whole, necessarily carried with it considerable peril to his neighbors. In the execution of that work the party wall at Barron's side was so injured that it fell in, and its fall dragged down the new building, and injured the plaintiff's party wall 'and premises. What is the law applicable? What was the defendant's duty? The law has been verging somewhat in the direction of treating parties engaged in such an operation as the defendant as insurers of their neighbors, or warranting them against injury. It has not however reached quite to that point. It does declare that under such a state of circumstances it was the duty of the defendant to have used every reasonable precaution that care and skill might suggest in the execution of his works so as to protect his neighbors from injury, and that he cannot get rid of the responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being responsible for injury no matter how occasioned, but he must be vigilant and careful, for he is liable for injuries to his neighbors caused by any want of prudence or precaution, even though it may be culpa levissima. It seems to me that the peril to the plaintiff's house continued as long as there remained any thing to be done which could interfere with the stability of the girder on which the defendant's house rested, which the defendant had fastened into the plaintiff's party wall, and that there was that want of due supervision and due precaution which makes the defendant liable."

People v. Faber.

PEOPLE V. FABER.

(92 N. Y. 146.)

Criminal law-bigamy — statutory construction.

The statute of bigamy prohibits the marriage of any one "having a husband or wife living." The statute of divorce prohibits the re-marriage, during the life-time of the complainant, of any person against whom a divorce has been obtained. Held, that one who marries in this State in violation of the latter prohibition is guilty of bigamy.*

(ONVICTION of bigamy, reversed at General Term. The opinion states the point.

CONY

John McKeon, district attorney, for appellant.

Wm. F. Kintzing and George L. Simonton, for respondent.

RAPALLO, J. The question in this case is whether contracting a marriage in this State, in violation of section 49 of the act concerning divorces (2 R. S. 146), constitutes the crime of bigamy, as defined in 2 Rev. Stats. 687, §§ 8 and 9, or is punishable only as a misdemeanor.

The provisions of the Revised Statutes bearing upon the question are as follows: Article 1 of title 1, chapter 8, part 2, relating to marriages, provides (§ 5): "No second or other subsequent marriage shall be contracted by any person during the life-time of any former husband or wife of such person, unless (1) the marriage with such former husband or wife shall have been annulled or dissolved for some cause other than the adultery of the accused." 2 R. S. 139.

Article 3 of the same title, concerning divorces (2 R. S. 144) provides (§ 38): "Divorces may be decreed and marriages may be dissolved by the Court of Chancery whenever adultery has been committed by any husband or wife." Section 49 : "Whenever a

marriage shall be dissolved pursuant to the provisions of this article the complainant may marry again during the life-time of the defendant, but no defendant, convicted of adultery, shall marry again until the death of the complainant."

*See Moore v. Hegeman, post.

People v. Faber.

Article 2 of title 5, chapter 1 of part 4 of the Revised Statutes, entitled "of unlawful marriages and of incest" (2 R. S. 687), provides (88) "Every person having a husband or wife living, who shall marry any other person, whether married or single, shall, except in the cases specified in the next section, be adjudged guilty of bigamy; and upon conviction shall be punished by imprisonment in the State prison for a term not exceeding five years.'

Section 9: "The last section shall not extend to the following persons or cases:

Then follow six subdivisions, the third of which is: "3. To any person by reason of any former marriage which shall have been dissolved by the decree of a competent court for some cause other than the adultery of such person."

Reading all these provisions together, the conclusion seems irresistible that the intent of the statute was that section 8 should extend to a divorced person who did not come within the exception. The language clearly implies, that notwithstanding the divorce, such a person is placed in the situation of having a husband or wife living for the purposes of the eighth section.

The third subdivision imports into the statute for the punishment of bigamy almost the identical language which is employed in 2 Rev. Stats. 139, § 5, subd. 1, which prohibits and declares unlawful certain marriages, the only difference being that in 2 Rev. Stats. 139, a husband or wife of the first marriage, who has obtained a divorce, is spoken of as the former husband or wife, and in subdivision 3 of section 8 the prior marriage is spoken of as the former marriage, but the intent is clear that the prohibition contained in the statutes concerning marriages and divorces shall be incorporated into the statutes punishing bigamy. The language of the latter act, where the sections are connected, is that every person having a husband or wife living, who shall marry, etc., shall be guilty of bigamy, except where the former marriage has been dissolved for some cause other than the adultery of the person contracting the subsequent marriage. There could scarcely be a plainer implication that for the purpose of enforcing the statutory prohibition, a person against whom a divorce has been obtained for that cause is regarded, by the statute, as having a husband or wife living so long as the party obtaining the divorce lives.

The judgment of the General Term in this case was based upon the case of People v. Hovey, 5 Barb. 117, which was decided in