McCleary v. Kent, the defendants in leaving a portion of an area, in front of a building which they had contracted to erect and finish, open and unguarded. The allegations in the complaint were denied by the answer. The cause, upon the issues raised by the pleadings, was tried before the Chief Justice and a jury in May, 1853, and came now before the court upon the following bill of exceptions. Upon the trial of the issue, the counsel for the plaintiff, to maintain the issue on his part, called as a witness F. P. Vidal, who, being sworn, testified as follows:-I am a City Surveyor; I surveyed south-east corner of West Broadway and Duane street (witness shown diagram); the area extends five feet five inches into West Broadway, twenty-four feet one inch and a half front on West Broadway; on Duane street the area is three feet nine inches to the walk; the area is covered with a grating to the stairs leading to the lower story; the stairs are four or five feet; the depth is eight feet three inches below the top of the sidewalk; the coping above the sidewalk is four inches. Sarah Lozier, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I own the premises south-east corner of West Broadway and Duane street; have owned them several years; I know defendants; I had a building put on the premises last summer by Kent & Dougherty, the defendants; they contracted to build it and finish it complete; same buildings that are up now; same area and gratings, contracted to finish and complete; the defendants finished the building; it was delivered and finished; don't recollect the time, it was about October. I don't remember any one's calling to see me about the work; the masons and carpenters had charge of the building; I don't know who was to furnish the iron work; I paid no one for any work except Kent & Dougherty, the contractors. Cross-examined.-Jasper Demarest is my son; he knows more about it; Mr. Cleary came into my room to inquire about the apartments the same evening, before the accident; my house is four houses off; he was in liquor when he came in to inquire about the rent; he wavered a little; I did not hear of the acci McCleary v. Kent. dent until morning; I thought he was in liquor; I supposed he was in liquor because he talked so unreasonably. M. H. Howell, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I am a housesmith; know defendants; did work on the building; the defendants employed me; I furnished the grate over the area in front; it was last summer. Cross-examined.-There was no written contract; the work was well done; I sent the grating and men to put it in; I was to receive $400 for putting it down; I do not recollect the width (the diagram is shown witness); the opening was two feet six inches wide, three feet six inches long; that is the diagram the building was erected from. John McDougal, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I am a tailor; reside in West Broadway; I know McCleary; I know the building; I was with him at the time he fell into the opening, 17th September, a quarter before eight, P. M.; McCleary and me were going up West Broadway, going towards Canal street; we noticed a bill on the corner; went to see who had the letting of the building on the corner; after looking at the bill he turned to go up West Broadway, and stepped into the area hole, where the grating now is; he stood nearer the hole than I did; the first step he took he fell into the hole; we left his store, in Church street, below Chambers street, the last place before we came here; I worked for McCleary; I stopped in West Broadway, at James Robinson's; he left the shop at half-past seven o'clock; I had been in his company about three quarters of an hour before leaving the shop; I did not see him going into any house to inquire the rent; he was as sober as I am this minute; I saw no light or protection of any kind; I did not know the hole was there until I saw McCleary fall in, and break his leg, and otherwise injure his body; the depth of the hole was from nine to ten feet; I carried him to my own house, 47 Thomas street; he remained from Friday till Thursday; thence home to Centre street, above Centre Market; he was confined about four or five months; his business was repairing and scouring old clothes; I had been in his employ about one year; he went McCleary v. Kent. out, through hotels mostly, and about the city, collecting work; out most of the time; always went on foot. Cross-examined. We drank a small glass of beer; I worked before that at another place; he attended to his business; he took a glass as well as another person; McCleary read the notice; he mentioned who had the letting of the house; I can't say who it was; it was somebody in Church street; he was in front of me when he fell in ; he did not go into a house 21 West Broadway. Dr. Gordon, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I am a physician; know plaintiff; was called on the night of the 17th September, at McDougal's; I found him in bed; I found the thigh bone fractured about one hand from the hip joint, he had some slight abrasure of the skin, shoulders bruised; I have attended him ever since that occurred; I set the leg; he was confined to bed for three months; for about a month after he went on a crutch; I believe, at present, it is as well as it ever can be; a cripple for life is the result of such an accident; my bill is $109 to present date; he had no appearance of being in liquor; I saw him before ten o'clock of that night. I have been paid $18 on account. Hugh Murray, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I am a tailor; I have been in McCleary's employ five years before September last, and afterwards I was employed by him, after the injury, to take charge of the shop; I received about $7 a week, for about two months; the business was rather on the decline, because plaintiff could not go out to look for work; $11 to $15 a week received only while I was there after the accident; before the accident the average was $4 a day. Oakley Bray, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I am a policeman, 3rd Ward, was so in September, another officer, Peter Ottington, and myself were going up West Broadway, we were on the opposite side, saw a crowd, ran over, found McCleary down the area way, assisted him out by a ladder. A man put him on his back and carried him home, McCleary v. Kent. he complained about his leg and face, he did not walk. I should think he was sober. There was a saw bench in the area. I had observed the hole before that night; I saw no precaution. There was no board or light to guard against the injury; the open space was three to four feet long, and about the same in width, and eight feet deep. The other policeman is dead. I do not recollect a gas-light on the corner. Cross-examined.-I think from the actions and appearance of the man he was not in liquor. Cornelius Durrees, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I saw the hole open a day or two previous, in the afternoon I noticed the bill, and went up to look at it. In stepping away I was near stepping in. It was between three and four o'clock, P. M. James Downing, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:-I am a carman; the day of the accident, I saw defendant Kent at the building, I told Kent it, was a dangerous hole. Kent said, if a man can't see that, he had ought to fall in. I did not see the man that was injured. The counsel for defendants hereupon moved to dismiss the complaint in this action, on the ground, that inasmuch as it appeared from the evidence that the witness, Howell, subcontracted with defendants to furnish the grating or iron work, and did so furnish the said grating or iron work, the said Howell employing men under him to labor upon said work; that under the evidence, the said Howell, if any one, and not the defendants, should respond to the plaintiff in damages. The court denied the said motion of defendants' counsel to dismiss the complaint, to which said decision of the court denying said motion the defendants' counsel then and there duly excepted. Patrick Corcoran, being called and sworn as a witness on behalf of the defendants, testified as follows:-I am a laborer; I am in the employ of Kent and Dougherty, since last September; knew the building in question; I remained there till the policeman got done; every night we put up guards of scaffolding boards. I was a laborer. Barclay Cummings, being called and sworn as a witness on behalf of the defendants, testified as follows:-I was at McCleary v. Kent. work in the building spoken of until the mason work was done; the iron grating was being put up when we left; we put up guards every night about six o'clock; we left the blacksmith when we went away; the carpenters were also there. Kent and Dougherty, with all the men, went up town after they got through. Upon being cross-examined by the plaintiff's counsel, the witness testified, I was not at the building at the time; did not see the hole. J. Van Voorhies, being called and sworn as a witness on behalf of the defendants, testified as follows:-I know the building; saw the person that fell; it was in September; saw him coming along the fence in West Broadway; he stepped up to read a bill; I thought the man was in liquor before he fell; I was standing in my store door, across the street, 125 feet off; it was dusk, not dark; I went over and saw them take the man out; he hobbled away between two men; the width of the side walk was about eighteen feet; the height of the coping is about six inches. John N. Lyon, being called and sworn as a witness on behalf of the defendants, testified as follows:-I have seen McCleary before. I was standing on the opposite corner. I did not think he was sober. David Stevens, being called and sworn as a witness on behalf of the defendants, testified as follows:-I am a baker. I know the building. I saw defendants while erecting the building. I lived across the way. I observed them putting on the plank every night while Kent and Dougherty were there; it covered the whole area. I recollect the grating was guarded some time. Cross-examined. I can't swear as to the night before the accident. Joseph Demarest, being called and sworn as a witness on behalf of the defendants, testified as follows:-I am the son of Mrs. Lozier. She and I contracted for the work with Kent and Dougherty. They contracted with Vanlieu for the carpenters. I am not acquainted with plaintiff's habits. I saw that building often. Defendants were there, off and on, while the grating work was being put up, after the |