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and 120 New York State Reporter the timbers supporting the hydrant rested, and at or shortly before this complete break in the pipe these supports settled, leaving the entire weight of the hydrant to be sustained by the pipe itself. The water poured from the break in large volumes, with great force, making a roaring noise, flooding the excavation, and entering plaintiff's cellar, as already stated.

Counsel for the city contends that it is not liable for three reasons: (1) That the break in the pipe was caused by the negligence of the contractor in failing to properly support the hydrant, and that under the permit he became an independent contractor, to whoin the work was delegated; (2) that there was no negligence shown on the part of the city or any of its employés; and (3) that the hydrant and lateral pipe connecting it with the main were constructed solely for the purpose of use in extinguishing fire, which is a governmental duty, and for negligence in the discharge of which the city is not liable in damages.

It clearly appears, we think, that the hydrant was not properly supported, and that it broke owing to the weight of the hydrant and that part of the pipe suspended over the excavation, and it is difficult to understand upon what theory the jury omitted to find negligence on the part of the contractor. That question, however, is not before us. As between the city and the contractor, it was undoubtedly his duty, under the permit, to properly protect the hydrant and supply pipe, but the rule of nonliability for the act of an independent contractor I think has no application to this case. The city, of course, would not be liable for any negligent act of the contractor or his employés; but that does not necessarily relieve it from liability for its failure to take precautions, within a reasonable time after notice, to prevent damage from the escape of water, even though such escape was caused by an act of the contractor. Moreover, were it not for the leak in the pipe which ultimately undermined the support to the hydrant, it may well be that the pipe would not have broken.

It does not follow from the fact that the contractor was negligent that the city may not be compelled to respond in damages. The plaintiff is entitled to recover against as many as he shows were joint tort feasors. The pipe that broke was a cast iron pipe, and it had been laid about 60 years. The stopcock and manhole had been constructed about 10 or 12 years, and new pipe was submitted for part of the old lateral pipe at that time, but not at the point where the break occurred. On the 23d day of December the defendant Reilly addressed a letter to the department of water supply, which was duly mailed, properly addressed, on that day, as follows:

"Gentlemen: The hydrant on the northwest corner of Chambers and Hudson streets is in a very leaky condition, and, as this bottom is composed mostly of loam and a mixture of sand, I do not think it safe to have this hydrant run, as, should it become worse, it may endanger the foundation of the building adjoining. Kindly have this attended to at once, and oblige, "Yours truly,

James J. Reilly." On the 27th day of December one Brady, who was a subcontractor under the defendant Reilly, properly addressed and mailed to the water department a letter signed by him, drawing attention to the fact that men were sent down to box the hydrant to prevent its freezing, and saying: “But it was leaking so much that we do not know whether it would be advisable to pack in a lot of mineral wool or manure around it; afraid it might freeze. Please let me know what we can do to stop it and put it in the best condition.” The plaintiff gave other evidence tending to show further communications with the water department concerning the leaky condition of this hydrant during two or three days preceding the flooding; and further showed that employés of the water department during this time discovered a leak in the joint of the hydrant itself, and discovered and repaired a leak in the vicinity of where the lateral pipe connected with the main, but that the water kept on dripping into the excavation; that the 29th day of December, when the break occurred, was on Sunday, at which time the pressure in the water pipes is very great; that the day before the water department, pursuant to a report made by some of its employés who had been there and discovered the condition of the hydrant, sent other employés to turn off the water, but that this had no appreciable effect upon the leak, which continued; that the chief engineer, foreman, and other employés of the water department had observed many days before this Sunday the manner in which the hydrant was supported and realized that it was not properly supported, but made no complaint to the contractor, and neither recommended that its condition be remedied or attempted to remedy it themselves, although the chief engineer admitted that if water was passing along the pipes and dripping into the excavation, as the evidence indicates, this was a condition attended with danger. If the hydrant had been supported in such manner that its support could not have been undermined by the leak, through which the water seems to have been constantly escaping in sufficient quantity to interfere with the work and to indicate the danger of an occurrence such as finally happened, for days, it may be that the pressure of the water, even on Sunday, would not have been sufficient to have broken this pipe, and there is no evidence that it would; but the evidence justifies the inference that the support was undermined by this escaping water, and the conditions were such that the employés of the water department should have known that this was liable to occur. The city is chargeable with knowledge that water which it thus artificially collects is a dangerous element if allowed to escape, and it is liable for damages caused by its failure to exercise proper care in maintaining the pipes in a safe condition, even though they are rendered unsafe by the wrongful or negligent acts of others. See Reed v. The State, 108 N. Y. 407, 15 N. E. 735. I think, therefore, that there was sufficient evidence to show concurring negligence on the part of the city with the negligence of the contractor, provided the city is not exempt from liability on the theory already stated.

The city in establishing and conducting a fire department, as in establishing and conducting a police department, is performing a governmental function. It is not liable in damages for the failure of the police department or members of the force to suppress crime, except under special statutory provisions, such as the law relating to damages caused by riots, or for unlawful arrests or assaults, even though committed with batons or revolvers furnished by it for the and 120 New York State Reporter use of patrolmen or officers of the force. Nor is it liable for the failure of the fire department to promptly respond to a fire, or for its negligence in extinguishing a fire, or for the failure of the city to supply the department with suitable and sufficient apparatus, or to furnish a proper supply of water, and maintain the same in a proper condition for use. These are all governmental functions, and in performing them the city represents the state. If the city maintained a separate water system for the fire department, and the break occurred in such a pipe, it may be that it could not be chargeable with negligence concerning the construction or maintenance of the same; but that is not this case, and need not be decided. Here the fire hydrants are collnected by lateral pipes with the mains which are used for supplying the city and its inhabitants with water, and from which the city receives a revenue. It is clear, I think, that for negligence in not repairing a water main proper, or a service pipe which is used for other than fire purposes, the city would be liable for any damages directly and proximately attributable to such negligence. It will not do, I think, to relieve the city from liability for negligence in failing to keep this lateral pipe connecting the hydrant with the main in repair upon the theory that it was constructed and is used solely for fire purposes. The water flowing through the main was directly connected with this hydrant. The connection could be cut off but it was not. That is immaterial, for had it been cut off, as I understand the evidence, the premises would still have been flooded, for the break either occurred or extended beyond.

It follows that the judgment and order should be affirmed, with costs.

PATTERSON and HATCH, JJ., concur. VAN BRUNT, P. J., and INGRAHAM, J., dissent.

(42 Misc. Rep. 260.)

CARPENTER V. HEWITT, (Supreme Court, Special Term, Chenango County. December, 1903.) 1. SALE OF REALTY-EXECUTORY CONTRACT–CONSTRUCTION.

An executory contract for the sale of land provided for payment of $400 annually during the life of the vendor, and, if he died within two years after the making of the contract, to pay $800 in four annual payments. Held, that the $400 payment was an annuity, and, if the vendor died within two years, payment of $800 by the vendee thereafter in four years was re

quired.. Action by Fannie Etta Carpenter against Henry Hewitt to construe an executory contract for the sale of land. Judgment for defendant.

Wordsworth B. Matterson, for plaintiff.
Howard D. Newton, for defendant Hewitt.
J. J. Bixby, for Harvey A. Truesdell.

FORBES, J. This action is brought to secure the construction of an executory contract for the sale and conveyance of real estate. The facts are stipulated.

On the 26th day of February, 1901, Isaac D. Richmond, now deceased, entered into an executory contract with Fannie Etta Carpenter, the plaintiff, to sell and convey to her his farm of about 200 acres of land, situate in the town of Norwich, in Chenango county. The second clause of said contract reads as follows:

"The party of the second part is to pay the party of the first part the sum of $100, annually on the first day of November in each and every year hereafter, including the year 1901, during the natural life of the party of the first part, and in case the party of the first part shall die within the next two years from the date of this instrument, the party of the second part is to pay $800 for said farm, and is to have four years from the date of this instrument in which to pay the same, in equal annual payments. The party of the second part is also to furnish and deliver to the party of the first part, at his home in the village of Norwich, N. Y., annually, each and every year hereafter, on the first day of November, including the year 1901, during the life of the first party, bay sufficient to keep one borse the year around, and twenty bushels of oats annually.”

Then follow clauses which require the plaintiff to keep the buildings in good repair, giving a lien on all the crops raised and the stock on said farm to secure the annual payments so contracted to be made. These provisions are followed by a forfeiture clause, and the right to take possession of said real estate in case the payments provided for are not made.

It is conceded that the first payment of $400 was made at or prior to the time it fell due and became payable, on the ist day of November, 1901, except the sum of $60, which was paid to and accepted by the administrator after the death of the intestate. Isaac D. Richmond died intestate on the 22d day of November, 1901, owning in fee simple said farm. The sum of $400 (being the annual payment to be made under said contract for the years 1902 and 1903) was duly made to and accepted by the defendant as administrator of the deceased. The performance of the provision for the delivery to intestate of the hay and oats mentioned in said contract was also completed for the year 1901, prior to the death of said intestate. From the facts stipulated, under the pleadings of the respective parties, together with the contract entered into as aforesaid, I am constrained to believe that the annual payment of $400 provided for must be regarded as in the nature of an annuity during the life of the defendant's intestate. This amount was to be paid annualiy, together with the annual delivery of the hay and oats provided for in said contract. A reasonable construction must be given to this provision in view of the circumstances, in harmony with the terms of the contract. The first annual payment of $400 became determined and fixed on the ist day of November, 1901. That amount, so far as it remained unpaid, became a debt due from the plaintiff to the intestate, which, together with the contract, upon his death belonged to his estate. None of the subsequent annual payments were due at the time of Richmond's death. Therefore the contract must be deemed to have been only so far completed within the lifetime of the intestate. The contract now provides for a new and continuing relation between the parties to this action, fixed by the terms thereof, and so changed in form as to become due in four equal annual payand 120 New York State Reporter ments of $200, having regard to the date of those payments, which are also fixed by the contract, as from the date of the instrument. The first payment after the intestate's death fell due and became payable on the 26th day of February, 1902. These payments must be construed as the sum of $200 annually. Two of these payments have been made. The other two are also provided for by the terms of the contract, but are now waived by a stipulation entered into between the attorneys for the parties to this action. The pleading's are in evidence, and are to be read as a part of the evidence. Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701. Possession of the intestate's farm was yielded to the plaintiff. The intestate removed therefrom to the village of Norwich. It must be conceded that the parties had in contemplation the event of the intestate's death within the period of two years mentioned in the contract. It is true that the contract might have been an onerous obligation to the plaintiff, had the intestate lived many years; still each party took that hazard. The plaintiff seems to have been benefited by the chance. ties were strangers in blood to each other. The estate descends to the representatives of the intestate's father. It must not be assumed that the contract provides for a gift to the plaintiff of $100, since no relationship or affinity between the parties thereto has been disclosed.

Judgment is therefore ordered for the defendant, together with costs to the defendant Hewitt, as the administrator of the intestate's estate. John H. Hicks, Esq., of Norwich, N. Y., may be appointed as referee to execute and deliver a deed of said premises to the administrator, pursuant to the terms of said contract, upon the payment to the administrator of the balance found to be due upon said contract at this date. The administrator is hereby authorized to deliver the same to the plaintiff.

Judgment accordingly.

The par

(42 Misc. Rep. 253.)

MERSEREAU V. CAMP.

(Supreme Court, Special Term, Broome County. December, 1903.) 1. WILLS-CONSTRUCTION-INTEREST OF LEGATEE.

Testator gave all his property to his wife and her sister equally, except as thereinafter provided for one M., to whom he gave $1,000, to be paid by the other legatees out of their shares on his coming of age, with a prorision that on the decease of his wife and sister, if anything was left undisposed of by them, it should go to M. Another clause of the will gave them power of sale. The wife at her death gave the property in question to her sister, and M. brought partition. Held that, as long as the sister

lived, the interest of M. was confined to his legacy of $1,000 at majority. 2. PARTITION-WH0 MAY BRING.

One not in actual or constructive possession of premises cannot maintain

partition. 3. WILL-NATURE OF ESTATE.

Where testator gave certain property to his wife and her sister, with a provision that if, on the decease of both, there was anything “left un

1 2. See Partition, vol. 38, Cent. Dig. $ 60.

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