App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

or press against this door, common prudence required that they should see to it that the door was not left so slightly fastened as readily to open and permit one to be thrown to the cellar floor, which was several feet below the level of the alley; but, in the absence of any observation, experience or warning to suggest such a possibility, it seems to me that it would be laying down a very stringent rule of liability to hold that they were in duty bound to guard against it. To assume that the door was securely closed because he heard the latch click, as the witness Foley evidently did, was a natural and justifiable assumption, unless there was something to call his attention to the fact that a mistake in this matter might imperil others in life or limb, so that greater caution was necessary.

"No one is guilty of negligence by reason of failing to take precautions which no other man would be likely to take under the same circumstances." (S. & R. on Neg. [4th ed.] § 11.) This seems to me an excellent statement of the rule applicable here. Without other notice or knowledge of the danger than that disclosed by the proof in the case at bar, no one situated as the defendants' workmen were would be likely to take any greater precautions than they did in reference to the closing of the cellar door. While those precautions might have been deemed insufficient if the men had been aware or warned of the possible consequences of not fastening the door securely, they were apparently all that prudence demanded under the circumstances. (See Spengeman v. Alter, 7 Misc. Rep. 61.)

It may be that, upon another trial, the plaintiff will be able to show that the defendants' employees were sufficiently acquainted with the daily movements of the school children through the alley and near the cellar door to be aware that such an accident as actually occurred, or one of a similar nature, was liable to happen if the door was not firmly secured; but without such proof the case, in my opinion, lacks an element which is essential to charge the defendants with negligence.

I think the judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred, except HATCH, J., dissenting.

SECOND DEPARTMENT, MARCH TERM, 1897.

HATCH, J. (dissenting):

[Vol. 14.

The defendants had a contract for putting in the steam heating apparatus in the basement of public school building No. 107, and at the time when the injury which is the basis of this action was sustained had been at work at the building for two weeks. There was a double door in the basement which led into an alleyway; the latter connected with the playground attached to the school and formed a part of it. These doors extended partially below the surface of the alleyway to the bottom of the basement and partially above it, being divided at about the center. The doors had been used by the servants of the defendants, from time to time, for the purpose of taking in material used in the construction of the work, and their contiguity and location to the alleyway and playground was apparent upon mere inspection. The doors were usually kept locked by the janitor of the building, and whenever the defendants desired to use the door they applied to the janitor to unlock it or to furnish the key, if the same had not been left in the lock. The fas tening of the door was upon the inside. During the time that the defendants were at work in the basement the school was in session and the children in attendance thereon passed through this alleyway to reach the playground and enter the building. Upon the morning of the accident the janitor had locked the door, and at about ten o'clock in the forenoon the defendants opened the same for the purpose of receiving some material necessary for the prosecution of the work. After thus making use of the doorway the defendants' foreman directed one of the workmen to close and lock the door; this direction was not obeyed; only one side was fastened, the other side being left slightly ajar. It remained in this condition until about one o'clock, when plaintiff's intestate, a boy about six years old, and an attendant upon the school, was in the alleyway waiting for an opportunity to enter the building in his turn, with the other children, when he leaned against the door, the same gave way and he was precipitated into the basement, receiving injuries from which he subsequently died. The foregoing facts the jury were fairly authorized to find from the evidence offered. The defendants gave no evidence, and the question raised upon this appeal is whether the facts are sufficient, as matter of law, to support the verdict which was rendered.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

I think the jury were authorized to find that the defendants knew, or, in the exercise of reasonable care, ought to have known, the purpose for which the alleyway was used and the necessity which existed for keeping the door locked. They had made use of the door before this time; they had usually found it locked, and applied to the janitor for the key when they did not find it in the door. The fact was open and patent that the alleyway was a passageway to the school building, and formed a part of the playground. The school was in session, and the children passed through the alleyway in large numbers, and the defendants' foreman knew that the door ought to be kept locked for some purpose. I think it was for the jury to say whether or not the foreman knew that it was necessary to be kept locked for the protection of the children, or, if he did not so know, that in the exercise of reasonable care he ought to have known. This was a public school building; hundreds of children attended it daily. Our common knowledge is that children make use of the playground. They did in this case. The relation which the door occupied to this place was open and apparent, and a person making use of it could not escape such knowledge except he closed his eyes. Under such circumstances it needs no argument to demonstrate that leaving this door unlocked created a trap, made it a dangerous place, and invited just such an accident as happened. This place was perfectly safe when the door was locked; it was safe upon this morning, until the defendants interfered with it for their own purposes. Having knowledge of the conditions and surroundings, and of the fact that the door was kept locked, a duty was imposed upon the defendants to see that no act of theirs changed this place from one of safety into one of danger. The principle which governs the case is not other or different from that which determined the liability in the Beck Case (68 N. Y. 283), as it seems to me clear that the defendants were chargeable with notice of the purpose for which the alleyway was used, and of the necessity which existed to firmly secure the door.

For these reasons I am unable to agree with my associates in the conclusion reached by them.

Judgment and order reversed and new trial granted, costs to abide the event.

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 14.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD O'CONNOR and WILLIAM W. SMITH, Relators, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Respondent.

County Law - the action of a board of supervisors in establishing a fire district is it cannot be reviewed by certiorari.

legislative

The authority conferred upon boards of supervisors, by section 37 of the County Law (Chap. 686 of the Laws of 1892, as amended by chap. 902 of the Laws of 1896) to establish fire districts outside of incorporated villages, is clearly a legislative power, and, being such, its exercise cannot be reviewed by means of a writ of certiorari.

CERTIORARI issued out of the Supreme Court and attested on the 21st day of September, 1896, directed to the board of supervisors of Queens county, commanding them to certify and return to the office of the clerk of the county of Queens all and singular their proceedings relating to the passing of a resolution which purported to establish a fire district in the town of Oyster Bay, Queens county.

Thomas Young, for the relators.

Townsend Scudder, for the respondent.

WILLARD BARTLETT, J.:

The establishment of fire districts outside of incorporated villages is provided for by section 37 of the County Law (Chap. 686, Laws of 1892, as amended by chap. 902, Laws of 1896). That section empowers the board of supervisors of a county to establish such fire districts, on the written verified petition of the taxable inhabitants of the territory which it is proposed to comprise therein, "whose names appear on the last preceding assessment roll of the town within which such proposed fire district is located, as owning or representing more than one half of the taxable real property of such district or as owning or representing more than one-half of the taxable real property of such district owned by the residents thereof."

On the 30th day of July, 1896, the board of supervisors of Queens county adopted a resolution which was numbered fifteen, and which was entitled, "An act to provide for the formation of a Fire Dis

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

trict within the Town of Oyster Bay, Queens County, New York." This resolution recited the presentation to the board of supervisors of a petition praying that a district, duly described therein, be declared a fire district, pursuant to section 37 of the County Law, and granted the prayer of said petition by establishing the district particularly described therein as a fire district in the town of Oyster Bay, Queens county, New York, in accordance with the provision of the County Law already cited.

The relators in the present proceeding ask this court to review the action of the board of supervisors in passing this resolution, and to annul the determination of the board, to the effect that the conditions existed which authorized the establishment of a fire district outside an incorporated village in the town of Oyster Bay. They allege that there were really nine petitions instead of a single petition, and that only one of the nine purported to be verified; and, furthermore, that even if these nine papers be regarded as one petition, there cannot be found in them, taken altogether, any evidence that the signers constituted the taxable inhabitants of the proposed fire district whose names appeared on the last preceding assessment roll of the town of Oyster Bay as owning or representing more than one-half of the taxable real property of such district or as owning or representing more than one-half of the taxable real property of such district owned by the residents thereof.

At the outset of the argument in behalf of the defendant it is insisted that the creation of a fire district is a legislative act, and, therefore, that the action of the supervisors in creating such a district is not reviewable by certiorari.

This objection is well taken and is fatal to the proceeding. A similar attempt to review the action of these same defendants was made in the case of The People ex rel. The Trustees of Jamaica v. The Board of Supervisors of Queens County (131 N. Y. 468). There the subject of attack was an act for the improvement of certain public highways in the town of Jamaica; and it was held that the court was so clearly without jurisdiction to review the action of the board of supervisors upon a writ of certiorari that it ought not to pass upon the merits which the relators sought to have determined. "The writ of certiorari," said EARL, Ch. J., in that case, APP. DIV.-VOL. XIV. 77