#### City of Cohoes, App’lt, *v.*James Morrison, Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed December,*1886).

1. Judgment — When conclusive as evidence.

The City of Cohoes sued the defendant to recover the amount of a judgment which the city at the suit of one S. was compelled to pay him on account of an injury suffered by reason of a wrongful obstruction of the street, which obstruction was, as between the city and S., the act of the city. Upon the theory that this defendant was the author of the obstruction the city *107gave him notice of the action and requested him to defend. He did not comply. In this action the judgment roll in the action between the city and S. was given in evidence. *Held,*that to make that judgment conclusive evidence between the city and the defendant, the city must establish the fact that the defendant was the author of the act whereby S. was injured.

2. Estoppel — Effect of, ok same issue in s ubsequent suit with another PARTY.

This defendant erected over the bank of the E. canal a tramway. Between the bank and the tramway there was a clear space of twelve feet. The bank belonged to the State, and there was no evidence showing that it was accepted by the city as a street at the time of erection of the tramway. The city assuming control over the bank graded and paved it, and in so doing raised its level two feet. The evidence tended to show that if there had been twelve feet of clear space S. would have escaped injury. *Held,*that the issue as to whether the bank was a public street was open to contest in this action, that the fact that in the action by S. the city was estopped from denying the fact, did not operate against the right of this defendant.

3. Dedication of land as public street — must be followed by acceptance.

*Held,*that in case of a dedication of the bank to the city by the State as a street, it was necessary, in order for the lawful establishment of a street, that the city’s acceptance should appear.

*4.*Same — Acceptance subject to burden.

*Held,*that an acceptance of the bank as a street, by the city, after the building of defendant’s tramway, was an acceptance subject to this burden.

5. Public streets — Duty of city in regard to their safe condition.

*Held,*that the city was bound to keep its public streets in a reasonably safe condition for travel, and should not invite the public to use them before it had placed them in that condition.

P. *D.*Niver, for appl’t; *Matthew*Male, of counsel. *Earl L.*Stimson, for resp’t, *Esek*Qowen, of counsel.

Landon, J.

The city sued the defendant to recover the amount of a judgment which the city at the suit of one Sewell was compelled to pay him, because of the injury done to Sewell by a wrongful obstruction of the street, which obstruction was as between the city and Sewell, the act of the city. The city, upon the theory that this defendant was the author of the obstruction, gave the defendant notice of the action and requested him to defend it, but this he failed to do. The judgment roll in the action between the city and Sewell was given in evidence in this action. To make that judgment conclusive evidence between the city and the defendant, the city must establishthe fact that the defendant was the author of the act whereby Sewell was injured. *City of Rochester*v. Montgomery, 72 N. Y., 65; *Village of Port Jervis.*v. *First National*Bank, 96 id., 556; *The Mayor of Troy*v. *Troy & L. R. R. Co.,*49 id., 677; *City of Chicago*v. Robbins, 2 Black, 418, 4 Wall., 657.

If that fact was in issue and determined in the acd .1 of *Sewell*v. *The City,*then the judgment in that action w uld establish it here. But it was not in issue in that action; Sewell only sought recovery from the city, and it was not need*108ful for him to establish that the defendant was the primary author of the act which injured him. At least an inspection of the judgment roll in that action fails to disclose the existence of that issue, and it is not shown by evidence *aliunde*that it was therein determined. It was necessary, therefore, for the city to show by proof outside of the judgment roll, that the defendant was the author of the act injuring Sewell.

Now, the proof is that the defendant did erect over the bank of the Erie canal, in 1868, the tramway between which and his great vehicle Sewell was caught and crushed in 1874, (see *Sewell*v. Cohoes, 75 N. Y., 45). This canal bank was the property of the State upon which the public were accustomed to travel. There is no evidence that it was accepted as a public street by the city at the time the tramway over it was erected. The tramway was so erected as to leave twelve feet clear space between it and the surface of the canal bank beneath it.' In 1873 the city appropriated the canal bank as a public street; whether rightfully or not as between the city and the State was immaterial to the issue between the city and Sewell (75 N. Y., 45). The city assuming control and authority over the canal bank, graded and paved it, and in doing so, raised its surface two feet, so that the twelve feet clear space beneath the tramway was reduced to ten feet. The evidence tended to show that if there had been twelve feet of clear space, S.ewell would have escaped injury.

Upon these facts the city could not resist the conclusion that its acts caused this tramway to be injurious to Sewell. It failed therefore to prove the facts necessary to bind the defend-an by the judgment in favor of Sewell, unless the law charged the duty upon the defendant, when the city appropriated the canal bank as a public street, to remove the tramway. The city had not prior to Sewell’s injury required its removal.

The complaint in the former case alleged, and the answer denied, that the tramway was over a public street. It is claimed in behalf of^ the city that that issue having been made'and determined in the former action is not open to inquiry here. But in order to Sewell’s recovery, it was only needful for him upon that issue to show that as between himself and the city, the city was estopped by its action to deny that the street was a public street. The city raised the objection upon the evidence in that action that it had not been shown that the city had lawfully acquired and established the street, but it was held that it was not necessary to the plaintiff’s recovery to proceed so far. The court of appeals in affirming the judgment remarked that the city “ cannot escape liability, for the alleged reason that it had no control over it and the land belonged to the State (75 N. Y., 52). It certainly accords with justice that the defendant here should be allowed *109to contest an issue material to his defense in this case, namely, whether in fact the place in question was a public street as between himself and the city. This issue, had he assumed the defense of the city in the former action, he could not have brought to a decision. The city was there estopped by acts in which this defendant had not participated.

The issue in the former action is broad enough either to cover the issue raised here, or to exclude it. The issue determined is consistent either with a lawful or an unlawful act as between the city and this defendant. The judgment, therefore may or may not have determined the issue now raised by this defendant, and we cannot know except by extrinsic evidence whether it did or not. The judgment therefore leaves the issue open to further contention. To this effect are the authorities. *Russell*v. Place, 94 U. S., 606; *Davis*v. Brown, id; 423; *Cromwell*v. *County of Sac,*id., 351; *Campbell*v. *Rankin,*99 id., 261; *Doty*v. *Brown,*4 N. Y., 71; *McKnight*v. *Devlin,*52 id; 399.

The judgment failing to show that the *locus in quo*was a public street as between the city and the defendant at the time the tramway was erected by the defendant, the construction of the evidence most favorable to the city is, that after the tramway was erected, it accepted a dedication from the State.

The city contests the conclusion that a street did not exist before the tramway was erected. The evidence shows that the public had before the erection of the tramway, traveled over the canal bank at this point in order to reach a bridge crossing the canal. Probably this travel was by the implied license of the State, a license revocable at pleasure. But if we assume a dedication by the State, we must find an acceptance by the city before we can hold that a public street was lawfully established, and there are no acts upon which to base an acceptance until the city entered and established a new grade. An acceptance must be of the dedication as made; the acceptance does not enlarge the dedication. When the acceptance was made it was of the street with the defendant’s tramway over it. The city accepted the dedication subject to the burden. *Fisher*v. *Prowse,*2 B. & S., 770: *State of New Jersey*v. *New Jersey Society,*15 Vroom, 502; *City of Oswego*v. *Oswego Canal Co.,*6 N. Y., 257.

The defendant so far as appears from the evidence, was the owner of the tramway. The State could abandon its own claim, but could not without the defendant’s consent or upon compensation or by proceedings in which he might have an opportunity to be heard, extinguish his. The city occupied no better position, and it does not appear that before the injury to Sewell, it desired to hold the street otherwise than in subjection to defendant’s claim.

The city contends that the judgment in the former action is *110conclusive tbat it did not accépt the street subject to the obstruction, because if it had, Sewell could not have recovered, as he was one of the public which had accepted the dedication, and thus accepted its burden. The answer seems to be that the city is bound to keep its public streets in a reasonably safe condition for travel, and should not invite the public to use them before it had placed them in that condition.

Judgment affirmed with costs.

LearNed, P.J., and Bocees, J. concur.