Hunton v. Village of Peekskill

The sole ground for the demurrer in- this case .was that the com-, plaint did not state facts sufficient to constitute a cause of action.

The plaintiff, an infant and á resident of the village- of Peekskill, winch is a' municipal corporation duly organized under t,lie laws- of. the State, brings this action-by his guardian ad litem, duly appointed:. At- the corner of Hudson avenue and South street in said village stands the . Gospel Mission building, which was used at. the time in ■question as a-public place for religious worship. About May 16, 1904, the said' village, through its officers and servants, had négli*501gently .piled and deposited a large quantity of earth several' feet high from the public street near said building,-upon the entrance to, and stoop of, said building and extending from the same over the public sidewalk to and into said South street, and had negligently placed upon said pile of earth a large open pipe. The 6th paragraph of the complaint recites, “ That on the said 16th day of May, 1904, the plaintiff, for the purpose of attending a children’s religious meeting service in the said Gospel Mission Building, and while lawfully and legally entering said premises of said Gospel Mission Building, was, by the negligence of the defendant, violently thrown upon said mound of earth, falling into said open pipe or tile, which said pipe or tile immediately rolled with the plaintiff’s body into the gutter and against the curbstone of said street and against a piece of loose flagging lying in said gutter, which had been negligently deposited in said gutter by the officers, agents or servants of defendant prior tó the time of said injuries, and all of which aforesaid acts on the part of the said village, its officers, agents and servants, caused the said Boy M. Hunton to sustain severe and permanent personal injuries as follows,” etc. The plaintiff’s injuries were caused by the negligence of the defendant in leaving such a mound- of earth with the tile pipe on it in a public place and unguarded, and the plaintiff was free from contributory negligence. He gave due notice, made • proper claim and brought action within the statutory period to recover damages in the sum of $2,000.

The facts' stated, as well as those that can by reasonable and fair intendment be implied from them, are admitted by the demurrer. (Marie v. Garrison, 83 N. Y. 14; Sanders v. Soutter, 126 id. 193.) As the Court of Appeals say, in Coatsworth v. Lehigh Valley R. Co. (156 N. Y. 451, 457): “ Under the more recent authorities, pleadings are hot to be construed strictly against the pleader, but averments which sufficiently point out the. nature of the pleader’s claims are sufficient if, under them, he would be entitled to give the necessary evidence to establish his cause of action. (Rochester R'way Co. v. Robinson, 133 N. Y. 242, 246.)” The general rule of municipal tort liability is stated in Williams on Municipal Torts (at p. 17) as follows: “ It is. the universal rule, therefore, that municipal corporations, although there be no statute expressly creating the liability, are bpund to see that all purely *502ministerial and absolute duties undertaken by them are performed with reasonable care and prudence, and are responsible in damages for any failure so to perform them, to the same extent as a business corporation or a private individual would be in like circumstances,” citing innumerable authorities, among them many- New' York decisions. '

Under the averments of the complaint the plaintiff would be entitled to give the necessary evidence to bring his case within the general rule. The judgment' sustaining the demurrer should, therefore, be reversed, with costs.

Gaynob and Rich, JJ., concurred; Jenks, J., dissented.

Interlocutory judgment of the County Court of Westchester county reversed, with- costs, with leave to the defendant to plead over on payment of costs. ■