(77 Hun, 241.)

#### MAYOR, ETC., OF CITY OF NEW YORK v. BRADY et al.

(Supreme Court, General Term, First Department.

April 13, 1894.)

Indemnifying Bond—Against Action for Personal Injuries.

Where a city, which has paid a judgment recovered against it for personal injuries caused by an obstruction left in a street where work was being done by a contractor, sues on the contractor’s bond for indemnity, it may show that the contractor committed the negligent act on which the recovery was had against it by the person injured.

Appeal from circuit court, New York county.

Action by the mayor, aldermen, and commonalty of the city of New York against John Brady and others. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

For former report, see 24 N. Y. Supp. 296.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Wm. H. Clark, for appellant.

James A. Deering, for respondents.

PARKER, J.

As we adhere fully to the position taken by this court on the former appeal in this action (70 Hun, 250, 24 N. Y. Supp. 296), further discussion of the questions considered will not be indulged. The record then before the court disclosed that the plaintiff, in order to establish its cause of action, had introduced in evidence the contract, the bond, and the judgment roll, proved the payment of the judgment, the amount expended in contesting the former action, and rested. This court held that the plaintiff had failed to make out a case. It appeared from the judgment roll that the issue whether the city or the contractor was primarily liable, as between themselves, was not presented or tried; therefore it failed to establish that which was essential to a recovery, viz. that the judgment recovered against the city was for damages caused by some negligent act or omission of the contractor, for which, as between him and the city, the contractor was primarily liable. On the last trial, the record of which is now before us, the plaintiff produced the witnesses who were before the court upon the trial of the action between Cruickshank and the plaintiff, and attempted to prove the alleged negligent acts which furnished the basis for the recovery had by Cruickshank; the purpose being to establish, as between this plaintiff and Nutt & Kearns (the contractors for whom these defendants were sureties), that Nutt & Kearns were primarily liable for the damages sustained. The *325evidence was excluded, and thus is presented error for which a reversal must be had.

Upon the argument it was asserted that the plaintiff had failed to fairly apprise the court that its purpose was to prove the original negligence, and that Nutt & Kearns were primarily liable to respond for the damages resulting. That such contention was incorrect sufficiently appears from the extracts following, which we take from the record:

“Mr. Biandy: I offer to prove that the judgment against the city proceeded as the result of the negligence of Nutt & Kearns. The Court: I have already ruled on that point, and you have taken your exception. Mr. Biandy: Your honor does not get the point of the distinction. I told you, when Mr. Cruickshank was on the stand, I did not offer it for the purpose of proving negligence of hiutt & Kearns, but for the purpose of proving that the judgment proceeded against the city, because of the finding of negligence by the jury in that action. The general term might say to me that it was not competent for me to prove that the judgment proceeded that way, but that I should have gone on and proved the original negligence. The Court: I have twice read you the paragraph of the general term’s opinion which is the basis of my action in this trial. You have taken your exception to protect your rights. Mr. Biandy: I offered Cruickshank a moment ago, not to prove the original negligence of Nutt & Kearns, but to prove that the judgment proceeded against the city because of the negligence, leaving the judgment record then to be conclusive. Now I am in a position to prove the original negligence. I have all the witnesses here that we called on that trial, but I don’t think your honor wants me to call them. I think you mean, under the opinion of the general term, the proof would not be competent in either respect. If you say so, I am entirely satisfied. The Court: I cannot say anything more than I have. I have read you again and again this paragraph in which the general term said no such issue was tried, or could have been tried, upon that trial. Therefore I am obliged to sustain the objection.” Augustus W. Cruickshank, recalled for plaintiff: “Q. Will you describe to the jury the position of the pipe in question, on the night that you met with your accident? (Objected to—First, upon the ground that the record in the suit of Cruickshank v. The Mayor is conclusive in this action; second, that sufficient foundation has not been laid for the question of more proof that the land in question was a parcel of land over which the plaintiff had a right to pass. Objection sustained, for the reasons already stated. Exception.) Q. State the circumstances under which you met with the accident which you have described in the Cruickshank action? (Same objection, ruling, and exception. Plaintiffs rest.)”

The judgment should be reversed, and a new trial granted to the appellants, with costs to abide the event. All concur.