[225 N. Y.]

Opinion, per CHASE, J.

[Jan.,

remain outstanding in the hands of bona fide holders they represent an indebtedness against the exposition association and the holders of said checks have a valid claim against the exposition association therefor while the liability of the laborers thereon, if at all, is by reason of their indorsement or guarantee express or implied of such checks when the same were transferred by them. Seven of the defendant laborers are affected by their having so transferred the checks received by them from the exposition association and have failed to repossess themselves of and surrender such checks to the exposition association or to the court herein.

The trustee in bankruptcy of the exposition association holds his title subject to the liens filed by materialmen and laborers which were filed within the time prescribed by statute. (Gates & Co. v. Stevens Cons. Co., 220 N. Y. 38.)

There are many other questions presented on this appeal. It is enough in this opinion to say that they have all been examined by the court and we concur in the conclusions reached by the Special Term and Appellate Division herein so far as the same affect the questions now before this court.

The judgment so far as it is entered in favor of the defendants Yonkers Lumber Company and Lawrence Brothers should be reversed, with costs to the racing association against each in this court and in the Appellate Division. The judgment so far as it is in favor of the defendant laborers John Highley, James Cooney, Edgar C. Hulse and William Van der Wende should be reduced as follows:

The judgment in favor of John Highley from $37.50 and interest to $21 and interest;

The judgment in favor of James Cooney from $22 and interest to $3.25 and interest;

The judgment in favor of Edgar C. Hulse from $80.99 and interest to $10.68 and interest;

1919.]

Statement of case.

[225 N. Y.]

The judgment in favor of William Van der Wende from $72.75 and interest to $10.70 and interest.

The judgment so far as it is in favor of the defendant lienors, Frederick McAleese, Thomas Hanrahan and Thomas Birch should be reversed as without any evidence to sustain it.

The reduction of the judgment as against the defendant laborers named and its reversal as against the other defendant laborers named should be without costs. The judgment in favor of the plaintiff and the defendants other than the defendants Yonkers Lumber Company, Lawrence Brothers, John Highley, William Van der Wende, James Cooney, Edgar C. Hulse, Frederick McAleese, Thomas Hanrahan and Thomas Birch should be affirmed, with costs against the appellant in favor of each respondent or association of respondents filing a brief in this court by one attorney or firm of attorneys. HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, MCLAUGHLIN and ANDREWS, JJ., concur.

Judgment accordingly.

WILLIS, Appellant,

CORA WILLIS,

v. F. EDWIN PARKER,

Respondent.

negligence

Municipal corporations - Auburn (city of) sidewalks liability of property owner for failure to keep sidewalk in repair as required by charter of city party injured by defective sidewalk may bring suit directly against negligent

owner.

"to

The charter of the city of Auburn imposes a statutory obligation upon the owner of property abutting a public street in that city make, maintain and repair the sidewalk adjoining his lands." The statute also prescribes the liability of the owner for a failure to perform the legal obligation so enjoined by enacting that such owner shall be liable for any injury or damage, by reason of omission, failure or negligence to make, maintain or repair such sidewalk or for a

[225 N. Y.]

Points of counsel.

[Jan.,

violation or non-observance of the ordinances relating to making, maintaining and repairing sidewalks. (L. 1879, ch. 53, § 113; L. 1897, ch. 172.) The complaint alleged that plaintiff sustained severe personal injuries due to the negligence of defendant in failing to maintain and keep in repair a plank sidewalk on which plaintiff was lawfully traveling. By reason of the failure of the defendant to perform the statutory duty imposed upon him the rights of the plaintiff were violated and loss and harm inflicted upon her, and she was not required to first institute an action against the city. She was, if so advised, privileged to do so, or, as she elected, to bring suit directly against the defendant owner.

Willis v. Parker, 173 App. Div. 552, reversed.

(Argued December 21, 1918; decided January 7, 1919.)

APPEAL from a judgment, entered July 5, 1916, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to and directing dismissal of the complaint. The appeal brings up for review the interlocutory judgment.

The nature of the action and the facts, so far as material, are stated in the opinion.

Frank C. Cushing for appellant. The holding of the court below that the provision of section 99 of chapter 185 of the Laws of 1906, the charter of Auburn, creates no right of action in favor of a person sustaining personal injury directly against the owner of such walk or the premises to which it pertains, cannot be sustained. (Cushen v. City of Auburn, 22 Wkly. Dig. 387; McMullen v. City of Middletown, 187 N. Y. 37; D., L. & W. R. R. Co. v. Madden, 241 Fed. Rep. 808; 187 N. Y. 37.) It is not sought to charge this defendant with liability under that provision of the statute which required him to keep his walk safe alone, but under the further provision, which in express terms made him "liable for any injury or damage" resulting from his disobedience to the com

1919.]

Opinion, per HOGAN, J.

[225 N. Y.]

mand of the first provision. (Riggs v. Palmer, 115 N..Y. 506; Mead v. Stratton, 87 N. Y. 493; Schlegel v. Am. Beer, etc., Co., 64 How. Pr. 196; Chase v. N. Y. C. R. R. Co., 26 N. Y. 523.) Upon the ground of demurrer, that there is a defect of parties defendant, in that the city of Auburn is not a party defendant, if it were necessary to point out anything further in opposition, it is found in the authorities holding that in cases of injuries arising from torts, the injured person may sue all, or any one of several who are responsible for the injuries. (Creed v. Hartmann, 29 N. Y. 591; Rappaport v. Werner, 34 App. Div. 525; Slater v. Mersereau, 64 N. Y. 138; Shearman & Redfield on Neg. [4th ed.] § 122.)

Amasa J. Parker and F. A. Parker for respondent. The clause in the charter making a property owner liable for injuries was intended to make him liable to the city in the event that he did not obey its direction but as to the public generally the city alone is liable. (Kosters v. Nat. Bank, 62 Misc. Rep. 419; Segal v. Ehrman, 155 N. Y. Supp. 286; Rochester v. Campbell, 123 N. Y. 405; Village of Fulton v. Tucker, 3 Hun, 529; Russell v. Vil. of Canastota, 98 N. Y. 502; McMahon v. Sec. Ave. R. R. Co., 75 N. Y. 231.) The immunity of the lot owner from liability for damages for defects in streets is founded in reason and justice, and is supported not only by authority but by the uniform current of authority, not only in this, but in our sister states. (Brown v. Wysong, 1 App. Div. 423; Law v. Kingsley, 82 Hun, 76; Moore v. Gadsden, 93 N. Y. 12; Wenzlick v. McCotter, 87 N. Y. 126; Kirby v. Boylston Market Assn., 14 Gray, 249; Taylor v. L. S. & M. S. R. R. Co., 45 Mich. 74; Segah v. Ehrman, 91 Misc. Rep. 481.)

HOGAN, J. The plaintiff in her complaint alleged that the defendant was the owner and occupant of premises

[225 N. Y.]

Opinion, per HOGAN, J.

[Jan.,

commonly known as No. 120 Wall street, in the city of Auburn; that on the evening of September 10, 1912, while she was passing along Wall street in front of the premises of the defendant she sustained severe personal injuries due to the negligence of defendant in failing to maintain and keep in repair a plank sidewalk on which plaintiff was lawfully traveling. Additional facts are stated in the complaint sufficient to constitute a cause of action, assuming that the defendant was liable to respond in damages to the plaintiff.

The defendant served a demurrer to the complaint and stated as the grounds thereof, 1, that it appears on the face of the complaint that said complaint does not state facts sufficient to constitute a cause of action; 2, defect in parties defendants in that the city of Auburn is a necessary party defendant.

The demurrer was sustained and from a final judgment entered in favor of defendant plaintiff appeals to this court.

As the determination of the question presented upon this appeal is dependent upon a construction of section 99 of the charter of the city of Auburn, a review of the provisions of the charter relating to the authority of the common council to enact and enforce ordinances relating to streets and sidewalks is unnecessary.

Section 99 of the charter so far as material reads: "The owner or occupant of lands fronting or abutting on any street, highway, traveled road, public lane, alley or square, shall make, maintain and repair the sidewalk adjoining his lands and shall keep such sidewalk and the gutter free and clear of and from snow, ice and all other obstructions. Such owner or occupant and each of them, shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk, or to remove snow, ice or other obstructions therefrom, or for a violation or