in the post, inserted the nail in the hole, and caused the nail to come in contact with one of the charged cables therein, and the boy was instantly burned on the hand and wrist. The evidence shows that the hole was necessarily placed at the lower end of the post as an outlet for accumulating gases. There was conflicting evidence as to whether the insulation upon the cables within the post was defective, and, in view of the verdict of the jury for the plaintiff, we must assume that the plaintiff's version upon this aspect of the case is correct. It does not seem to us that the defendant, in the exercise of reasonable care and prudence, could have guarded against this accident. The hole in the post was very small, and, ordinarily, it would have been impossible for any pedestrian to have come in contact with thecharged cable. The accident, therefore, was not caused by the negligence of the defendant. It was due entirely to the fact that the infant plaintiff, finding a long nail and observing the small hole in the post, inserted the nail in the hole. The accident not having been due to the fault or the neglect of the defendant, it follows that the recovery in favor of the plaintiff cannot be sustained. Judgment reversed, with costs, and complaint dismissed, with costs. All concur. (161 App. Div. 203) FABER V. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. March 6, 1914.) 1. MUNICIPAL CORPORATIONS (§ 768*) - PERSONAL INJURIES · - CONDITION OF STREET. Municipalities are not liable as for negligence by reason of slight depressions or differences of grade in the street. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1622, 1624, 1625; Dec. Dig. § 768.*] 2. MUNICIPAL CORPORATIONS (§ 821*) — PERSONAL INJURIES - CONDITION OF STREET-QUESTION FOR JURY. In an action for the death of the driver of a truck by a fall occasioned by the wheel of the truck running into a depression in the street, evidence held to require the dismissal of the complaint for failure to show negligence of the city. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. § 821.*] Laughlin, J., dissenting in part. Appeal from Trial Term, New York County. Action by Mary Faber, as administratrix of the estate of Rudolph. Faber, deceased, against the City of New York. From a judgment for plaintiff, and from an order denying motion for new trial, defendant appeals. Reversed, and complaint dismissed. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, SCOTT, and HOTCHKISS, JJ. Clarence L. Barber, of New York City, for appellant. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes SCOTT, J. Plaintiff's decedent, a truck driver by occupation, came to his death on December 8, 1911, in consequence of a fall from a truck which he was driving and upon which was loaded a high pile of lumber. The jury have found by their verdict that his fall was occasioned by the fact that the front wheel of his truck ran into a hole or depression in the roadway at or near the corner of Division and Suffolk streets in the city of New York. The sole question upon this appeal is whether it appeared from the evidence that the defect in the roadway was of such a character and had existed for such a length of time as to charge the defendant with negligence in suffering it to remain unrepaired. [1] The rule is now firmly established in this state that municipalities are not to be held liable, as for negligence, by reason of slight depressions or differences of grade in the highway. This rule is supported by a great number of decisions, many of which are collated in Terry v. Village of Perry, 199 N. Y. 79, 92 N. E. 91, 35 L. R. A. (N. S.) 666, 20 Ann. Cas. 796. The obvious reason for the rule is that to hold otherwise would subject municipalities to a burden beyond that which they are reasonably required to bear. [2] In the present case the hole on the roadway which, as it is said, caused the accident was clearly due to the wearing away of the asphalt pavement, which had been laid, as it is frequently done over the stone block pavement. The thickness of the asphalt was shown to have been not more than two or three inches. The superficial area of the hole was about two feet square. Some of the witnesses testified that the hole had existed for about two months, but not always of the same size, for it had gradually extended by wearing away of the asphalt as the street traffic passed over the spot. As to the depth of the hole or depression, the estimates of the witnesses differed widely, some making it as much as nine inches, resulting, as it was said, from the sinking of the stone blocks underlying the asphalt, but there is no evidence whatever as to how long this condition had existed. There is no evidence that any official or representative of the city had ever been notified of the defect in the pavement; the claim being that notice is to be presumed from the length of time that the defects had existed. So far as concerns the breaking away of the asphalt, it may be that a sufficient lapse of time was shown to warrant a presumption of notice, but there is no such lapse of time shown as to any sinking of the stone blocks. Opposed to the guesses or estimates of plaintiff's witnesses is the testimony of an officer of the city who actually measured the depth of the hole, and a street sweeper who assisted him. They make the depth at the deepest point only three inches and at other points materially less. The case thus presented is nearly on all fours with Lalor v. City of New York, 208 N. Y. 431, 102 N. E. 558, wherein a dismissal of the complaint was sustained. It is significant as to the character of the depression that, although there is much traffic at the place where the accident happened, no evidence was produced to show that any accident had ever happened there before. The evidence was insufficient to show culpable negligence on the part of the defendant, and the defendant's motion to dismiss the complaint should have been granted. Judgment and order appealed from reversed, and complaint dismissed, with costs to defendant in all courts. INGRAHAM, P. J., and McLAUGHLIN and HOTCHKISS, JJ., concur. LAUGHLIN, J. I concur in the reversal of the judgment and order, but dissent from the dismissal of the complaint. DORLAND v. FIDELITY DEVELOPMENT CO. et al. (ROBIN, Intervener). (Supreme Court, Appellate Division, First Department. February 13, 1914.) APPEAL AND ERROR (§ 91*)—RIGHT TO APPEAL. An order granting a motion for leave to intervene as a defendant will be affirmed on appeal, if the order does not affect a substantial right of the defendants appealing therefrom. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 612641; Dec. Dig. § 91.*] Appeal from Special Term, New York County. Action by Louise M. Dorland, a creditor, on behalf of herself, against the Fidelity Development Company, impleaded with others. From an order granting a motion of Joseph G. Robin for leave to intervene, the Development Company and others appeal. Affirmed. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Robert McC. Marsh, of New York City, for appellants. PER CURIAM. The order appealed from is affirmed, with $10 costs and disbursements, upon the ground that the order granted does not affect a substantial right of the appellants. In re HARMON AND HIMROD STREETS IN CITY OF NEW YORK. (Supreme Court, Special Term, Kings County. January, 1914.) 1. EMINENT DOMAIN (§ 237*)—ASSESSMENT BY COMMISSIONERS-MISTAKE-VACATION OF CONFIRMATION. Where it appears that, through a mistake, those upon whom the assessments for benefit are imposed are burdened with the payment of damages for a building which did not exist when title to damage parcels vested in the city, the Supreme Court may as to such parcels vacate the order confirming the report of the commissioners. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 604–613; Dec. Dig. § 237.*] 2. EMINENT Domain (§ 153*)—PROCEEDINGS-RIGHTS Of Claimant. A claimant purchasing the property and acquiring whatever rights he claims to a damage award some months before the report of the commissioners was confirmed, and before it was signed, but subsequent to the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes time when a building thereon was destroyed by fire, has no standing as a bona fide purchaser of the award. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 407–416; Dec. Dig. § 153.*] 3. EMINENT DOMAIN (§ 237*)-CONFIRMATION OF AWARD-SETTING ASIDE OR DER. The award upon confirmation of the final report of the commissioners of estimate is not a vested right which cannot be destroyed by setting aside the order of confirmation. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 604-613; Dec. Dig. § 237.*] 4. EMINENT DOMAIN (§ 237*)-CONFIRMATION OF AWARD-VACATION in Part. The Supreme Court, having power to set aside an order confirming the final report of commissioners of award, may set aside as to certain damage parcels, and is not bound to set it aside in toto. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 604613; Dec. Dig. § 237.*] Application by the City of New York to vacate an order confirming the final report of the commissioners of estimate as to certain damage parcels and to have the matter sent back to the commissioners. Application granted, and report referred to the commissioners, with directions. Archibald R. Watson, Corp. Counsel, of New York City (Joel J. Squier and George E. Draper, both of New York City, of counsel), for the motion. Halbert & Quist, of Brooklyn, opposed. BENEDICT, J. This is an application by the city of New York to vacate the order entered in this proceeding on May 18, 1911, confirming the final report of the commissioners of estimate, in so far as it confirms the award for damage parcels 31, 32, 33, and 34, and also an order entered August 25, 1913, directing the payment to Andrew Weissenberger of the award made for said damage parcels, which was originally made to William Sommer; and it is further sought to have the matter sent back to the commissioners, so far as said damage parcels are concerned, for a further report. The ground of the motion is that pending the proceedings and prior to the confirmation of the final report the building on said permises was destroyed by fire, and that the award as made included the damage resulting from the taking of part of such building. The commissioners in this proceeding were appointed by an order entered January 6, 1909. The damage map used by them showed a building, part of which stood on damage parcels Nos. 31 and 32, and it is apparent from the map that the taking of these parcels would result in a total destruction of the building. William Sommer, it is assumed, put in proof of title to damage parcels 31-34, inclusive; but it is not made to appear whether or not he put in proof of damage. On July 25, 1910, the building on the premises which would have been damaged by the improvement was destroyed by fire. On or about December 21, 1910, William Sommer sold the premises of which the above-mentioned damage parcels formed a part to the present claim For other cases see same topic & § NUMBER in Dec. & Am. Digs, 1907 to date, & Rep'r Indexes ant, Andrew Weissenberger, who opposes this motion, by a deed containing an assignment of the award in this proceeding for the taking of said damage parcels. This deed was recorded December 28, 1910. On or about March 27, 1911, the commissioners signed their final report dated that day, and on May 18, 1911, an order was entered confirming the report, and on that date title vested in the city. In or about April, 1913, Weissenberger applied to have the award for said damage parcels paid to him, and upon the report of a referee an order was made on August 18, 1913, directing it to be so paid. It appears from the motion papers that a single award of $3,400 was made for the four damage parcels, and the commissioners did not indicate how much was for land taken and how much for the damage to the building. It appears, however, from the moving papers that in the directions given by the commissioners for making up their report they indicated that $1,900 was awarded for the damage to the building and $1,500 for the land. [1] Thus it appears that through a mistake those upon whom the assessments for benefit are imposed are burdened with the payment of $1,900 for damage to a building which did not exist when title vested in the city. It is obvious therefore that the order confirming the report, so far as it confirms the award for the damage parcels in question, ought to be vacated, if the court has power to do so. And I think under recent decisions the court has that power. In Matter of City of New York (Decatur St.) 196 N. Y. 286, 89 N. E. 829, 37 L. R. A. (N. S.) 281, the Court of Appeals had before it on appeal a dispute as to the ownership of an award made to an unknown owner by the report of the commissioners, which had been duly confirmed without opposition. It appeared that the award should have been a nominal award instead of a substantial award. The Court of Appeals reversed the orders of the courts below, which directed the distribution of the award, and remitted the proceeding to the Special Term, "with leave to any party or to the city of New York to move to set aside the award and assessment, if any, and for a rehearing before the commissioners, or others to be appointed in their stead." This is a clear intimation, to say the least, that in the opinion of the Court of Appeals the Supreme Court at Special Term has power to grant such an application as is made in the case at bar. In Matter of City of New York (Titus Street), 152 App. Div. 752, 137 N. Y. Supp. 817, the Appellate Division in this department reversed an order denying a motion to vacate the order confirming the final report of the commissioners and also an order of reference in a subsidiary proceeding to obtain payment of an award made to unknown owners, and granted the motion, on the ground the award should have been nominal and not substantial. These cases furnish sufficient authority in support of the power of the court to grant the present motion. They must be deemed to have overruled several earlier cases which seem to support a contrary doctrine. See Matter of Albany Northern R. R. Co. v. Cramer, 7 How. Prac. 164; Morning Side Park Case, 10 Abb. Prac. (N. S.) 338; Visscher v. Hudson River R. Co., 15 Barb. 37; Matter of Elmwood Ave., 10 N. Y. St. Rep. 272. |