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Hawxhurst v. Mayor, etc., of New York, 15 Abb. N. C., 181.

LAWRENCE, J. It is too well settled to be a question that, for a personal injury occasioned by the negligence of several persons, there is a separate liability as well as a joint one, and that the person injured may at his election sue both or either of the wrongdoers.

In this case it is alleged that the defendants were jointly with certain other parties charged and chargeable with the duty of maintaining, rebuilding, repairing and caring for a certain bridge, known as Williams bridge, across the river Bronx, which in part forms one of the boundaries of said city of New York, and of keeping the said bridge, and the approaches thereto in a good and safe condition.

That in the latter part of the year 1881, the defendants, in discharge of the aforesaid duty, jointly with said other parties, caused said bridge to be repaired and rebuilt, and in so doing caused the flooring and timbers of said bridge to be removed, and the said bridge and its approaches otherwise made unsafe and unfit for passage, and were there charged and chargeable with the duty of erecting and maintaining in the said public street, 4 road and highway, at the said approaches to said bridge, suitable and sufficient barricades, lights, etc., so that persons lawfully passing over said public street, road and highway, in the night time, might be warned of the unsafe condition of the bridge and its approaches. That the defendants, jointly with said other parties, wholly failed in the said last mentioned duty, and, on or about December 24, 1881, negligently and carelessly suffered and allowed the said bridge and the easterly approach thereto, to be and remain wholly open and unprotected and without any barricade, light, etc., for the warning or protection of travelers, as aforesaid. That the plaintiff, in the evening of December 24, 1881, in the night time, was lawfully passing along said public street, road or highway, into the city of New York, from the county of Westchester, in entire ignorance that said bridge or its approaches were in any other than a perfectly safe condition, and open and suitable and safe for travel, and by reason of the said negligence of the defendants, the plaintiff, without any fault or negligence on his part whatsoever, fell off and over the said easterly abutment of said bridge, etc., and was thereby


Hawxhurst v. Mayor, etc., of New York, 15 Abb. N. C., 181.

greatly damaged. The defendants demur on the ground that 6 there is a defect of parties defendant, in that the parties alleged in paragraph second of the said complaint to be jointly chargeable with the defendants with the duty of maintaining the bridge therein referred to, are not made parties to the action.


I am of the opinion that the demurrer should be overruled. The duty of the city of New York to maintain and keep in repair the bridge in question jointly with the county of Westchester, is imposed by Chapter 163, of the Laws of 1880, which provides that the public bridges over the Bronx river, between the city and county of New York and the county of Westchester, which are now built or which may hereafter be built, shall be built and maintained and kept in repair by the said city and county of New York and the county of Westchester, and the expense of building or repairing any of said bridges shall be a joint charge upon the city and county of New York and the county of Westchester. It will be perceived from the allegation of the complaint, that the work of repairing had been entered upon by the defendants jointly with other parties, and that the alleged accident to the plaintiff arose from the negligent per- 8 formance of that duty. I find nothing which takes this case out of the operation of the general principle laid down in the cases heretofore cited, and the numerous other cases to the same effect, which are to be found in the books. Assuming that both the authorities of Westchester county and the authorities of the city of New York were guilty of negligence, they were either jointly or severally liable at the option of the injured party. In the language of Allen, J., in Barrett v. Third Ave. R. R. Co. (45 N. Y., 631): "If both were negligent in a manner and to a degree contributing to the result, they are jointly and severally liable."

I have examined the cases referred to by the learned counsel to the corporation, and do not think there is anything contained in them which should induce me to hold that this case should not be disposed of upon the authority of the cases heretofore cited. The case of Theall v. Yonkers (21 Hun, 265, 267), is cited by the counsel to the corporation in support of the demurBut that case, which was a case in relation to a bridge be



Hawxhurst v. Mayor, etc., of New York, 15 Abb. N. C., 181.

10 tween the city (formerly town) of Yonkers and the town of East Chester, was disposed of upon two grounds, the first of which was, that if it was the defendant's duty to keep the bridge in repair, the evidence showed and the referee had found that the defendant was not chargeable with any notice of the defect in the bridge which caused the accident. The second point was that, under the Act of 1841, Chapter 225, as amended by the Laws of 1857, ch. 383, the city and town were jointly liable, and such liability could only be enforced by action against the members of the Common Council of Yonkers and the Commissioners 11 of Highways of East Chester, jointly. It is plain from an examination of the case, that the decision of the second point was not necessary for the adjudication of the rights of the parties, the case having already been disposed of in favor of the defendant upon the first point. If, however, that case is to be regarded as going to the extent which is claimed by the counsel to the corporation, it seems to me to be opposed to the decisions of the court of last resort already referred to, and upon that point I cannot follow it as an authority.

The demurrer will, therefore, be overruled.

Berney v. Drexel, 33 Hun, 34.


New York Supreme Court, First Department, 1884.

[Reported in 33 Hun, 34; affirmed in 33 Hun, 419.]

1. In an action by the residuary legatees of a testator dying domiciled in France, for the conversion by defendants of property possessed by him at his death, an allegation "that, under and by virtue of the laws of France," the title to the property in question vested immediately upon testator's decease in the plaintiffs, is an allegation of title as a fact, not as a legal conclusion, and sufficiently shows ownership in plaintiffs.

2. Even if an allegation that by the will, etc., defendants "had legal notice of the illegality and invalidity of the title of the defendants' assignor" to the property, be a mere conclusion of law, and insufficient as an allegation of notice, so that proof of demand and refusal would be necessary to maintain the action-yet, if followed by an allegation that the defendants have converted the property to their own use, the conversion is sufficiently alleged as against demurrer; for under the latter allegation plaintiffs have a right to prove a demand and refusal or other facts to show an actual conversion.

3. Pleadings are not now to be strictly construed against the pleader; and allegations which sufficiently point out the nature of the pleader's claim are sufficient on demurrer, if, under them, he would have a right on the trial to give all evidence necessary to establish the claim. 4. The provision of Code Civ. Pro., § 488-making a misjoinder of parties plaintiff a distinct ground of demurrer,-and § 490-requiring a demurrer to distinctly specify the objection or ground of demurrer, and a demurrer for misjoinder of parties plaintiff (and for two other grounds) to point out specifically the defect relied on,—an objection that one of the plaintiffs has no right of action can no longer be taken under a demurrer merely for not stating facts sufficient to constitute a cause of action.

5. To raise such objection, the demurrer must be for misjoinder of plaintiffs, and specify the plaintiff who, as defendant contends, has no cause of action.

Action for conversion.

The allegations of the complaint were:

First. That on or about the second day of November, 1864, Robert Berney, who was then domiciled and resided in Paris, made his last will and testament, bearing date on that day, executed at Croydon, in England, in conformity with the laws


Berney v. Drexel, 33 Hun, 34.

2 of Great Britain, being in the words and figures following, to wit :




[Here followed a copy of the will and of a codicil.]

The second paragraph stated testator's death and the relationships of the plaintiff's to him and added:

That the said Robert Berney left him surviving no nephews or nieces, children of his said brother and sisters, except the plaintiffs above named, and John Berney and James Berney, children of the testator's brother, James Berney, both of whom have since died intestate, without issue, and that all said plaintiffs are of the age of twenty-five years, and upwards.

Third. The plaintiffs further show, that under and by virtue of the laws of France, where the testator had his domicile, the title to all the personal property of which said testator was possessed at the time of his decease, vested immediately thereafter in the plaintiffs other than the plaintiff Louise Berney, and in said John Berney and James Berney, Jr. (both of whom are now deceased), the residuary legatees named in said will, their title being subject, however, to the payment of the particular legacies by said will bequeathed and of the annuities therein given; and that upon the death of the said John Berney and James Berney, Jr., their interest in said property vested in their surviving brothers and sister.

Fourth. The plaintiffs further show, that Messier St. James, whose full name is Felix Amedee, Messier Collet de St. James, one of the executors named in said will, who was domiciled and resided in Paris, being well aware that the title to the property of which Robert Berney died possessed, was, by the laws of France, vested in the plaintiffs as aforesaid, procured James Berney, another of the executors named in said will, to apply for the probate of said will and codicil in Montgomery county, in the state of Alabama, although the said Robert Berney was not domiciled in Alabama at the time of his decease, and never had been domiciled in that state, nor a resident thereof, and although he had left no property therein, and although the said court had no jurisdiction whatever in the premises, the said court, nevertheless, assumed such jurisdiction, induced thereto by some con

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