The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-07-30
Common Plcas-2eneral Term.
Before Bon. Judge InRrsham,


QUESTION ON THK LIABILITY TIE FOB PERSONAL
JURY DohE by BLASTING ROCKS.
July 2S WILTON Kelly oppti,on ps. the Mayor, dc
Of Nev Pork respondent First Judge.-Ths
action brought ty tho pa nt to recover for an
jury 10 bis horses ia public street. by tho negligent
blasting Of rocks in the excayaDg Of tao streets OF
the city. The sets up that the work done
under contract made with the defendants by John
Quinn, and . denial of any liability for his ssts.
Upon the trial Of the case the plaintiff offered prove,
in addition to the mode In which the injury
sioLed and the facts connected there that Quinn
was eDgsged In doing tho work undsr coatract, and
thai he no nsggently, cArelessy and unsklfully
Quoted the That the Injury occasiooe there
by, and also tast Quinn wAs Aotoriously incompetent
and incapable TO perform the work. Ths court excluded
the evidence, and plaintiffs council excepted, and
tht refore the complaint was disnissed THIS case Of
Blake vs. Ferris Ssld A., and the following that
tho mayor, Gc Of New York, which was twice before
=. curt !, ., Appeals s.isn 2 have .s..ssnsa
liable Tor Injuries tasoned by the negligence Of the
persons employed BY a contractor In doing tbs work
but that the party Injured muht his redress against
this contractor, or the party Going the injury 1t ia
referred TO, by showing that the contractor himself
caused the and that he was an incompetent
con TO ts smplo,ed for that purpose Without refer.
ring the defect In the complaint In not ming to
scsyer on that ground but solely on the negligence OF
the defendants thur agents and servants. and under
cont,s cannot with proprsty be recovered pro-
coed 70 the examination cf the question upon It's ms
Of injury and the extent Of It, II Il had been sccomps
niec with the latter part OF the oe odght not to have
winch the ejur, vas and until It WAS all IN
proof could rot be decided whsthsr the defendants
were in fault not, but when 1t vas conus tied with
the facts that the work done under coptrAc pro-
duced this trial and referred TO in the bill OF excsp
tions sn1 that the contractor Incompetent psr
the whole oer wa properly rejected The cAses above
referred to- and aho the dson in this case heretofore
S Ss The rule oad faea per alia"
o per ,e 70 the case of negligence whsie the WORK il
sS' g. Sos, nv Sso % to
this case out Of the ruls established BY those
decisiors Tho rsls.ion Of master and ser
tsn tie Cooperation and te employees Of tas conteac
tor the conrsctsr In their agent servant In doing
for them And such has S.sn tho constant course OF
in the courts Of this city on questions Of
1n me @ rom tbs Of
MIR Justice Mullet In that case that he intended to ap
ply the rule wt to the acts OF tbs contractor TO
ttofe OF persons employed BY him Ia referring to tho
case Of QuaInan W. Brsnel, M. and " 4s7, h. ap
o. the doctrine that the conr to DO pise OF
the responsibility OF the employer for any thing b,
the Mayor, &c, Of New York, Mr.. Justice Jswstt,
The contract Gees not constitute the contrAc-
tor the agent servant OF the DEFENDANTS the employ
e intent to apply these decisions TO all cases OF
contract wttrs tie contractor has the sole control OF
the work ard when the person for whose bensdt ths
work IL 10 beons Cannot CONT OIL thu doing OF it. ap
pears 70 clear that II would be Idle tns court
any longer hesitate In following these DECISIONS to
that extent, whAtsvtrmay have bean our previous
vie upon The policy or justcs Of such rule II was
urged that tbs cefs ants liable fer employDg
incompetent or upsiiiiul person to do the work,
and, therefore, the evidences shpuli have bsea
received. II they could be held liable for snch
the ofer rot broad enough in offering merely the
fact Of the contractor being noterously Incompetent
without ng that The defendants had kno Wedge OF
such iompstenty at the time OF employ such
fscts would chow them guilty ofnssligvnce In
'uch tract The Corps ration not to be presumed
TO know more than other bodies corporate indvidu
ais and they sought to bs held liable for employ
Ing improper persons 10 do the work OF ths public, IL
only Dc after inowlecge OF such incompstency In
shown. am not prepared 10 ray that the defendant
might not at the tire when this injury sustaiosd
have hen liable for tho emplcymsnt Of incompetent
perfons TO Go the public WORK The provision requiring
all work. Of which the cost shall exceed $780, TO be dons
by contract not adopted until 1853 add until that
period they not compelled to give such contracts 70
the lowest bideer, excepting far their ordi
nances may have regulated the sams but whether they
might have been held liable or nos 1t is eucent for
this to that the complaint does not wsrrAnti
and that the offer OF evidence not sufcient to
ablsh such liability The plaintiff not entitled to
even II he had proved all the matters contained
In his offer Of evic ence ths complaint therefore
Id "A "a ~ ~nl,~n.