plaintiff's testimony at the trial as to the facts of the accident. On the other hand, there are many corroborations of the strongest character of the statements made by him in his affidavit, upon the day when the mishap occurred. To begin with, the affidavit itself is entitled to great weight, and for other reasons besides the circumstance that its execution was attended with the solemnity of an oath. Plaintiff claims that the reason why he was induced to make such a statement was that he was so dazed, and his nervous system so upset by his fall, that he had no knowledge of what the paper contained, or of what he was doing. But the signature to the affidavit, a photographed copy of which is in the case, shows no sign of physical weakness or nervous trepidation. It was evidently made with a steady hand, and with considerable care, although there are no indications of painful effort. It is in all respects a better piece of penmanship than the signature made on the day of the trial for comparison, while in the formation of letters and in all essential particulars the two signatures are the sign manual of the same person. In the original affidavit the word "stepped" is written over the word "jumped," which was erased. Mr. Brolles, a notary public, who drew the affidavit, testifies in explanation of this that, when the affidavit was first prepared, it read; "The conductor took no notice of me, and I jumped from the car while it was in motion;" that the plaintiff read the affidavit, and objected to the word "jumped;" and that it was at plaintiff's suggestion that the word "stepped" was substituted. This circumstance tends strongly to show that plaintiff was conscious of what he was doing when he signed and swore to such paper. There is also the direct evidence of a number of witnesses, being officers and employes of the defendant, and also that of a physician who attended the plaintiff at the time when he made the affidavit, to the effect that he was then in full possession of his faculties. There is even a further corroboration of the defense offered. It appears that the conductor of the car from which the plaintiff fell, upon the day of the accident made the following report in writing: "NEW YORK, Dec. 1, 1885. To the President of the Third-Avenue Railroad Company: On my 8:44 trip from Harlem, a passenger, in getting off, did not wait for the car to stop, and as he stepped off I pulled the bell. The car was going very easy. He fell, but was not hurt. He got up and walked away, threatening to report me." The conductor also testified on his oral examination that the plaintiff, upon rising after his fall, shook his cane at him, (the conductor,) and manifested great indignation and anger. All the evidence that has been offered on behalf of the defense tends to show that plaintiff's real purpose in going to the company's office was to report the conductor for some real or fancied wrong, thereby corroborating the conductor's version of the affair. In his affidavit made that day, plaintiff complains of the conductor, alleging that, although he told him to stop the car, the conductor took no notice of him. Even at the trial plaintiff testified that the conductor was immediately discharged after his complaint. As the trial judge remarked in his charge to the jury: "What was the conductor discharged for? What complaint did he [the plaintiff] make? If his statement is correct, he made no complaint against the conductor, because the conductor stopped the car, did his duty, and brought it to a standstill; and it was the fault of some one besides him that it went on. Yet he says the conductor was discharged on the spot." It thus abundantly appears that plaintiff's testimony on the trial (and upon that alone this verdict rests) is contradicted by his own statement under oath, made immediately after the accident, and is also inconsistent with a significant statement made by him in giving such testimony. On the other hand, the evidence of a number of witnesses examined by defendant agrees in all material points, and is, moreover, corroborated by all the documents in the case.

Our duty in the premises is clear. It is impossible to read the charge of the learned judge who tried this case without perceiving that his personal

impression of the evidence was strongly adverse to plaintiff's claim. He denied the motion to set aside the verdict because contrary to the weight of evidence, but in all likelihood he remembered in so doing that such application could be addressed to the general term on the appeal, and preferred to remit the same to us for determination. This is not merely an instance of the oral testimony of one man being pitted against the unanimous oral declaration of a large number of adverse witnesses. It is, in addition to this, a case where the plaintiff, for the purpose of making out a state of facts that would prevent a dismissal of the complaint, directly denies prior written declarations of his own under oath, and tells a story so inconsistent with his former actions that the conclusion recorded by the jury is absurd. Although in a discussion of this nature each case must be judged by its peculiar facts, and precedents have comparatively little value, yet in many essential respects the case at bar is analogous to Molloy v. Railway Co., 10 Daly, 453, and McCarthy v. Railway Co., Id. 540. The judgment should be reversed, for the reason that the verdict is against the weight of evidence, and a new trial is ordered, with costs to abide the event.

VAN HOESEN, J., concurs.

WINTERS V. MAYOR, ETC., OF NEW YORK.

(Common Pleas of New York City and County, General Term. December 3, 1888.) MUNICIPAL CORPORATIONS-CONTROL OF STREETS-OBSTRUCTION IN BUILDING.

While plaintiff was walking over a plank laid from a temporary sidewalk in front of a building in the course of erection to the street, the plank turned, and threw him against an iron spike which had been used in connection with a derrick, but was not in use on that day. Held that, as the occupation of the street in this manner was authorized by law, and as the city had no control over the work, it was not liable for the injury.

Appeal from trial term; HENRY W. BOOKSTAVER, Judge.

Action by Michael Winters against the mayor, aldermen, and commonalty of the city of New York. In August, 1883, three brick houses were being erected on the south side of Eighty-Sixth street in the city of New York. Gessler was the builder, and Wise contractor. The plaintiff had carted brick to these buildings, and on August 18, 1883, went to the office therein to get his usual receipt of delivery. During the erection of the buildings an elevated and wooden temporary sidewalk was constructed, from which to the street a plank was placed for the use of persons having business with the buildings aforesaid. When the plaintiff walked over this plank he fell, striking his right knee on the top of an iron spike which stood in the street, causing a fracture thereof. The spike in question had been used to fasten guys for a derrick; had been there for several weeks, but was not in use on the day of the accident. Upon the trial, after hearing the evidence, the complaint was dismissed on the ground of failure of affirmative proof of the defendant's negligence. From the judgment of the court as above stated the plaintiff appeals.

Alfred B. Cruikshank, for appellant. Henry R. Beekman, (Albert E. Henschel and Thos. P. Wickes, of counsel,) for respondent.

LARREMORE, C. J., (after stating the facts.) That the defendant owed a duty to the public to keep its streets in safe and proper repair is unquestioned, and notice of any defect or obstruction therein might lawfully be presumed from lapse of time. But the case before us presents a somewhat different phase of the law holding the defendant to answer for a legal responsibility. The occupation of the street and sidewalk by a person engaged in the erection of a building is clearly within the authority of the law. Rehberg v. Mayor, 91 N. Y. 137. It appears from the evidence that the spike which caused the

injury, although not in use at the time of the accident, was necessary for the completion of the buildings in question. The city gave no authority for the occupation and use of the street or sidewalk. That, as above stated, was conferred by the law. Gorham v. Trustees, 59 N. Y. 660. It was strenuously insisted upon the argument that where two causes of injury contributed to an accident, either cause, proximate or remote, would afford a ground of recovery. The authorities cited to sustain this proposition are not applicable to the case under review. The case of Worster v. Railroad Co., 50 N. Y. 203, decided that a railroad company was bound to lay its tracks in a proper and secure manner, and was liable for any neglect resulting therefrom. Mullen v. St. John, 57 N. Y. 567, holds that the owner of a house adjoining a street must keep the same in proper condition so that it shall not fall; and, if it does, negligence will be presumed from any accident occurring thereby, and the burden of proof is cast upon such owner to absolve him from liability. Hume v. Mayor, etc., 74 N. Y 264, was a case within my personal consideration in its first instance, and was affirmed by the court of appeals mainly upon the ground that the city must be presumed to have had constructive notice of the defective condition of the wooden shed or awning that caused the injury. Ring v. City of Cohoes, 77 N. Y. 83, makes no change in the principle of law above referred to. Rehberg v. Mayor, supra, holds that the neglect of a public officer, (to-wit, a policeman,) or his mistake in not reporting as to an obstruction of bricks piled in the street, would not save the city from liability, and that the offer to prove the legal regulations as to the height of a pile of brick in front of a building in process of erection, which was rejected, was error. In the case of Goodfellow v. Mayor, etc., 100 N. Y. 15, 2 N. E. Rep. 462, a nonsuit was granted, which the court held to be error, thereby deciding that the act of a policeman whose duty it was to inspect the cross-walks in his precinct, and who had examined and failed to report any defect in the same, did not discharge the municipality from liability if such defect was subsequently shown. The city had no control over the work to be done in the erection of the buildings, and the person doing the same is chargeable with any alleged negligence for improperly performing his duty. Pack v. Mayor, etc., 8 N. Y. 222; Kelly v. Mayor, etc.. 11 N. Y. 432. The whole range of authority establishing the liability of municipal corporations seems to point to the correctness of the conclusion reached by the trial judge and leads to an affirmance of the judgment appealed from.

VAN HOESEN, J., (concurring.) Though I shall vote with Chief Justice LARREMORE in favor of affirming the judgment, my reasons are not precisely the same as his. The city was upon the testimony undoubtedly responsible for the presence of the spike in the highway; for it had been there for some days, if not for some weeks. It had, therefore, constructive notice, at the least, that the spike was in the street. It is in evidence that it was placed there by the builders to facilitate them in carrying materials for building to the upper part of the houses that were in the course of construction. It was used to fasten guy-ropes that appertained to the hoisting-machine. Now, instead of assuming that the spike was in the street in violation of law and without leave of the city authorities, I think that, in the absence of all testimony, we ought to assume that the spike was there by permission of the city; for the city is empowered to permit the placing of an obstruction in the street when the promotion of building makes such obstruction necessary. Subdivision 4 of section 86 of the consolidation act confers upon the common council the power to permit the temporary obstruction of a street "during the erection or repair of a building on a lot opposite the same." Here it is shown that the spike was in the street opposite a building that was going up. The mere fact that an obstruction exists under such circumstances does not create any liability on the part of the city. It may lawfully obstruct the street oppo

site a house that is building for the purpose of facilitating the mechanics. But the obstruction must not be obviously dangerous. If it be so dangerous that men of ordinary prudence would condemn its use, permission for it should be absolutely refused by the city authorities; but if it be not, when used with ordinary care, hazardous to the public lawfully using the street for street purposes, the city ought not to be held liable if an injury results accidentally from its presence in the highway. Merely to prove, therefore, that the spike was in the street is not enough to warrant a verdict against the city when it is also shown by the plaintiff that it was in use opposite to a building then in progress. Some proof was necessary that it was inherently dangerous, or that it was so misplaced or so concealed, or that its situation with respect to its surroundings was such, that men of common prudence could see that it was likely to cause injury. The testimony adduced by the plaintiff showed that spikes are in common use for holding guy-ropes attached to derricks, but that wooden posts are also used. There is nothing to warrant us in saying that wooden posts are safer than spikes, (for in contingencies that can be conceived of they would be far less safe,) or that the use of spikes is not compatible with the exercise of ordinary care. It appears, then, that the case is barren of evidence that the presence of the spike in the street was an unauthorized obstruction, or that it was an obstruction that became unlawful because obviously dangerous; and hence a finding of negligence against the city would have been without evidence to support it. It will be seen that I have made no point of the fact that when the plaintiff was injured he was not using the street for street purposes, but was coming down a plank placed athwart the sidewalk for the convenience of workmen who had to carry some of the materials from the carriage-way of the street to the doorway of the house. The plank turned with him, and threw him down, and in his fall he collided with the spike that stood in the carriage-way. I have treated the case as if he were using the street in the ordinary way. For the reason that the city may authorize an obstruction necessary for the convenience of building operations, and that there is no proof that this obstruction was apparently dangerous to those using the street in the ordinary way, I think the motion to dismiss the complaint was properly granted.

KIMBALL v. HEWITT, Mayor, et al.

(Common Pleas of New York City and County, Special Term. August 10, 1888.) 1. MUNICIPAL CORPORATIONS-CONTRACTS-WITHDRAWING Bid.

Under a statute requiring municipal contracts to be let to the lowest bidder, and forfeiting to the city the certified check deposited with such bid in case the bidder refuses to sign the contract within five days, the city officers have no right to allow a bidder to withdraw his bid, even before the bids are opened. 2. SAME INJUNCTION-ACTION BY TAX-PAYER-GOOD FAITH.

When it appears that injunction proceedings by a tax-payer to restrain the allowance of a municipal contract were begun by one person and continued by another, whose name was inserted in the complaint after it had been completed, and who did not verify it until several days after the summons was issued, and that affidavits in support of the injunction were made by the vice-president of a corporation interested in the letting of the contract, the court will, in its discretion, dissolve a preliminary injunction as not asked for in good faith, though the contract was not awarded in accordance with law.

Motion to continue pendente lite an injunction restraining the defendants the mayor, the comptroller, and the commissioner of public works, individually or as a board, constituting the gas commission, under the provisions of Laws 1882, c. 410, § 69, from executing any contracts for furnishing the city of New York with electric lights with certain named electric light companies, under an award made by defendants pursuant to bids for the contract. Before the bids were opened, the request of the Electric Construction Company's counsel to be allowed to withdraw its bid was granted, and this action was

begun by Andrew J. Kimball, as a tax-payer of the city, to restrain defendants from executing said contracts.

L. Laflin Kellogg, for the motion. Francis Marion Scott, opposed

VAN HOESEN, J., (after stating the facts as above.) Had the defendants been acting in their own private business, there is no doubt that they could have permitted the offer made by the Electric Construction Company to be withdrawn, but, acting as public officers, they could not lawfully forego the right that the city had acquired to insist that the company should either carry out its offer or forfeit the amount that it had deposited as security. When the bid of the Electric Company, with the certified check that accompanied it, passed into the hands of the commissioner of public works, the statute prescribed the disposition that should be made of the one and the other. The bid was to be publicly opened by the officers, who are the defendants in this action, and the contract was to be awarded to the lowest bidder. If the lowest bidder should refuse to execute, that is to say, sign the contract within five days after notice that it had been awarded to him, the amount of the certified check that he had deposited as security was to be forfeited, and retained by the city as liquidated damages, and paid into the sinking fund. No other disposition of the bid and the check was lawful. It has been decided that where the statute requires a public officer to award a contract for public work to the lowest bidder, he may be restrained by injunction from giving it to any one else, (2 High, Inj. §§ 1251, 1252,) and principle requires that the highest bidder should not be made the lowest bidder by the withdrawal of the lower bids. It matters not how honestly the officials acted, (and no one questions the absolute integrity of the distinguished gentlemen who are the defendants,) their consent to the withdrawal of the bid was in conflict with the statute.

Now, who has the right to complain of their action? The act of 1887 (chapter 673) provides that an action to prevent any illegal act on the part of any officers of a municipal corporation may be brought by any person whose assessment shall amount to a thousand dollars, and who shall be liable to pay taxes on such assessment to such municipal corporation. The object of the action is "to prevent waste or injury to the property, funds, or estate of such municipal corporation." The plaintiff alleges in his complaint that he possesses the qualifications mentioned in the statute, and there is nothing before me to cast doubt upon his allegation. But in all applications of this character it is the duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end. This is a familiar rule, and it was applied by Judge VAN BRUNT in Hull v. Ely, 2 Abb. N. C. 440, a case that strongly resembles this. There Mr. Hull, as a tax-payer, brought an action against Mr. Ely, to prevent waste of the city's property through a sale of certain ferry franchises in a manner that caused a loss to the city treasury; but Judge VAN BRUNT denied an injunction, because, to use his own language, “it is apparent from the circumstances surrounding this case that the plaintiff has not commenced this action to protect his interests as a tax-payer, but that the real parties in interest are the persons now using the ferry franchises, and consequently he has no right to call upon the court for the exercise of its equity powers." I find in the papers before me much that casts suspicion upon the bona fides of the present action. In saying this, I feel it my duty to add that I do not mean to impute a bad motive to the plaintiff's attorney, who has been retained, I suppose, because his good name lends respectability to any cause of which he is the advocate. The facts stated in the complaint constitute a good cause of action, and, if the plaintiff were really seeking redress, would warrant the granting of an injunction; but, as I have said, it is my duty to know that the plaintiff is honestly protecting his interests as a tax-payer, and that he is not resorting to this action