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First DEPARTMENT, MARCI TERM, 1897. [Vol. 15. be maintained unless notice of an intention to commence such an action shall have been filed with the counsel to the corporation within six monthis after the cause of action shall have accrued. The filing of this notice has been held to be a condition precedent to the existence of the cause of action (Foley v. Mayor, 1 App. Div. 586), and unless such a filing has been alleged the complaint is defective upon demurrer.
But, passing that point, we are of the opinion that in other respects the complaint is defective. The action is brought to recover damages for the carelessness and neglect of the officers and agents of the city of New York. The allegations of the facts which are alleged to constitute such neglect are found in the fifth paragraph of the complaint. The work which was to be done and for which the city had contracted, was the grading and improvement in other respects of Ninth avenue, and it is alleged that the work was to be done by a contractor with whom the city had entered into an agreement for that purpose.' The fifth allegation of the complaint sets up that the cause of the injuries complained of was the neglect of the said contractor, or his servants and agents, to see that the surface water, sewage and drainage, whenever it should accumulate through being impeded by reason of the regulating and grading of Ninth avenue, should have a sufficient outlet and be discharged and carried off, and it is said in the complaint that by reason of that neglect the surface water, sewage and drainage accumulated about the premises occupied by the plaintiff and caused the injuries complained of. From this allegation we see that the proximate cause of this injury was the neglect of the contractor. This neglect was the violation of the duty which the law imposed upon the contractor; it was the act of an independent person for which he was liable, and the city is not liable unless there is disclosed by the other allegations of the complaint some neglect of duty on its part which could be said to be the origin of the neglect of the contractor which was the immediate cause of the injuries sustained. In actions of this nature the law looks to the proximate cause of the injury which is complained of, and if that proximate cause is the result of the action of some independent person, the law looks no further to find a responsible agent who must answer for the injury which his act has caused. Therefore, the contractor App. Div.] First DEPARTMENT, MARCH TERM, 1897. is liable for this act of his, unless by some allegation of the complaint the plaintiff has made it appear that there was a misfeasance or malfeasance on the part of the officials of the city, which caused the contractor to do this work negligently and for that reason that the origin of the injury complained of could be traced to the action of the city setting in motion the immediately efficient cause of the wrong. Unless some wrongful act of the city was the moving cause of the negligence of the contractor, without which he would not have been negligent, the law will attribute the injury solely to his neglect and hold him only liable for it. (Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469-475.) The question, therefore, is whether this complaint discloses any act on the part of the city or any neglect of its officers by reason of which it can be said that the contractor was negligent. The work to be done was the improvement and grading of the public street. Ordinarily, the city is not liable for any injuries occasioned by the negligence of the contractor in doing that work. (Pack v. The Mayor, 8 N. Y. 222.) Such liability can only exist where the work to be done is such that it is attended with danger, however skillfully and carefully it is performed, in which case, as the doing of the work itself is likely to produce an injury, the person who causes it to be done is held to be liable for what may be the natural consequences of the acts which he has set in motion. (2 Dillon on Mun. Corp. § 1029.) The city may also be held liable for injuries inflicted in work of this kind, although the work itself, if properly done, is not likely to produce injury where, although the work has been let to an independent contractor, the city has retained control of the manner of doing it so that it has the right to give directions as to the steps which shall be taken to produce the result. In that case, as the city has control of the acts done by the contractor and may prevent any negligence on his part, it is held to be liable for any negligence which he is guilty of because it has not prevented it. (Goldschmid v. The Mayor, 14 App. Div. 135.) But neither of these conditions is alleged to exist here. The allegation here is that the officials of the city in making the contract failed to provide that the contractor should care for and remove all surface water, sewage and drainage which would necessarily be interfered with, impeded and backed up by reason of the grading of the street, and that is to be coupled with the further FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 15. allegation that the contractor was negligent in not caring for this surface water and drainage. So the allegation substantially is that the defendant failed to insert in its contract a provision that the contractor should not be negligent, and that he was negligent and his negligence, thus permitted, caused the injury. The defect in the complaint is that the law does not require the city to make any affirmative provision in its contract that the contractor shall not be guilty of negligence. Whenever the city makes a contract with any person to do an act which may be done properly, it is necessarily implied in the contract that the act is to be done in a careful, prudent and lawful manner. (Mayor v. Brady, 81 Hun, 440.) The law always implies that every person who is anthorized to do any act which, if it is done improperly, may injure his neighbor, will do that act without negligence, and such an implication is a necessary part of every contract. It is not alleged in this complaint that the contractor's negligence was caused by the failure of the city to provide against it, and there is nothing in the complaint from which it can be inferred that this failure in any way lay at the bottom of the negligence of the contractor. So far as appears, it was an independent act of his own, not arising from any provision of the contract, and one for which he only was liable. For this reason, as well as for the reason first given, we think that the demurrer to the complaint was properly sustained.
The judgment must be affirmed, with costs, with leave to the plaintiff to amend in twenty days on payment of the costs of this appeal and of the court below.
PATTERSON, O'Brien and INGRAHAM, JJ., concurred; VAN BRUNT, P. J., concurred in result.
Judgment affirmed, with costs, with leave to the plaintiff to amend in twenty days on payment of the costs of this appeal and of the court below.
WILLIAM W. SHARP and CHARLES S. Bryan, Composing the Copart
nership of SHARP & BRYAN, Appellants, v. OzRo W. CLAPP, and Dwight 0. CLAPP, Composing the Copartnership of CLAPP & Co., Respondents.
Serrice, with the summons, of a notice that judgment will be taken for an amount
specified — a complaint in conversion subsequently served will not be set aside.
When a defendant has been brought into court by the service of a summons,
the plaintiff is at liberty to set up any cause of action which he chooses, and this is so notwithstanding the fact that he has served with the summons a notice that in case of default judgment will be taken for a specified sum, as
prescribed by section 419 of the Code of Civil Procedure. The fact that a plaintiff serves such a notice with a summons, and subsequently serves a complaint setting forth a cause of action for conversion, is not an irregularity entitling the defendant to have the complaint set aside.
APPEAL by the plaintiffs, William W. Sharp and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1897, granting the defendants' motion to strike out the complaint herein upon the ground that it did not conform to the summons and notice.
Eugene D. Hawkins, for the appellants.
The action was begun by the service of summons, attached to which was a notice addressed to the defendants, that, upon their default to appear and answer the summons, a judgment would be taken against them for the sum of $2,800, with interest thereon and costs. The defendants did appear and demanded a copy of the complaint, whereupon there was served upon them a complaint setting out a cause of action for conversion, upon which the damages alleged were $2,800, and for which damages judgment in that sum was asked. Thereupon a motion was made by the defendants to set aside the complaint for the reason that it did not conform to the summons and notice, in that the nature of the action set forth in the summons and the notice was one on contract, and the complaint was First DEPARTMENT, MARCH TERM, 1897. [Vol. 15. one for conversion. That inotion was granted by the Special Term upon the authority, as is stated in the opinion, of the case of Adams V. Arkenburgh (106 N. Y. 615). We do not think that the case cited is any authority for the order made. In that case an action had been begun by a summons with which a notice had been served in the form prescribed by section 419 of the Code, as was done in this case. The notice was to the effect that in default of an appearance or answer, judgment would be taken against the defendant for a sum of money therein stated. The action was in fact for the dissolution of a partnership between the parties and the taking of an account. The defendants succeeded in the action and, upon motion, an extra allowance of costs was granted to them, based upon the sum of $65,000, which was the amount stated in the notice for which judgment would be taken. The plaintiff objected to the consideration of the notice as proof of the amount involved in the action; and the only question was, whether or not the notice of the plaintiff thus served upon the defendant, was properly considered as evidence of the amount involved upon which the court was at liberty to act in fixing the extra allowance. It was held that this notice operated as an admission on the part of the plaintiff that the amount involved in the action was the sum stated in it, and that it was sufficient for the court to act upon, and that the plaintiff was not at liberty to say that the notice did not truly state the amount which he would be entitled to recover in case he succeeded in the action. But the principle laid down in that case is not in any way applicable to the case at bar. The form of the summons is prescribed by section 418 of the Code of Civil Procedure. One form is prescribed for use in all actions, and when the defendant has been brought into court by the service of that summons the plaintiff is at liberty to set up against him any cause of action which he may see fit. (Curry v. Wiborn, 12 App. Div. 1.) His right in this respect is unlimited except so far as it is controlled by the necessity of bringing the proper parties into court. But, unless he has served a complaint with his summons, he cannot take judgment by default without application to the court unless he has complied with the provisions of section 419 of the Code. Those provisions are that he shall not take judgment by default without application to the court if a copy of the complaint is not served, unless the defendant appears, or a notice is served with