Betts v. Village of Gloversville

Landon, J. 1. As to the grade of the cross-walk. The sidewalk, curbstones, gutter, and road-way were first made according to the grades and plans of the board of trustees. The grade of the cross-walk was not the subject of specific instructions by the trustees, but it was laid by the street commissioner, who has the control of the streets, subject to their direction, and was laid to match the rest of the work. We may assume that the other parts of the work invol ved this part, and implied the direction that the cross-walk should conform to the other parts. In Urquhart v. Ogdensburgh, 97 N. Y. 242, the grade of the sidewalk, as established by the proper authorities, was changed for the worse by the lot owner, without authority, and the city’s acquiescence in it, with notice of the injurious change, was held to be negligence, and’ not ratification. I-Iere the work was done by the proper officer, who is to be presumed to have done his duty, and is shown to have -worked from grades so definitely established as to make it unnecessary further to instruct him with respect to the grades in question. We do not think negligence is imputable to the defendant because of failure more definitely to establish the grade. If there was any error in judgment in establishing the grade, such error is not negligence. Id. 91 N. Y. 67. 2. As to the film of ice upon the curbstone. Snow and rain fell on Tuesday, followed by extremely cold weather, continuing until the plaintiff was injured, on Friday night. This film of ice covered the streets of the village. Taylor v. Yonkers, 105 N. Y. 202, 206, 11 N. E. Rep. 642, holds that in such case the municipality may, without- negligence, await a thaw. 3. As to exceptions to rulings upon the admissibility of evidence. The plaintiff called the village clerk to show from the records that there was no record of any action respecting the laying of the cross-walk. Upon cross-examination the defendant asked him whether there was a bill furnished to the trustees for the stone and the laying of it. The witness answered that there was, and produced the bill, and read from the record that the same was audited and ordered paid by the board of trustees. This testimony was objected to as irrelevant and immaterial, and the objection overruled. This was not error. The testimony was a step towards showing that the laying of the cross-walk was approved by the board. The plaintiff offered to show by a witness that the street commissioner, while engaged in laying the stone in question, said to him that he was laying it according to his own discretion, and that he had no particular direction as to the manner of laying it. The defendant objected as incompetent and hearsay, and the objection was sustained. This was not error. The declaration offered goes to his authority. An agent cannot prove his authority by asserting it, or conversely disprove it by disclaiming it. If he. had none, his declaration could not bind his principal, and if he had authority, his disclaimer did not deprive him of it. 2To question of estoppel arises, and hence the rule that the declaration of an actual agent as to the extent of his authority may be binding in favor of a third person, who relies upon it, in the absence of any other means of knowledge, does not apply. The declaration was not part of the res gestee, because it did not touch the act of laying the cross-walk, but the authority for laying it, which, if conferred, was a past transaction. The same witness testified, under defendant’s objection, that at the time of the accident the stone in question was slippery, was always slippery in the winter, and was dangerous. The court, on motion of defendant, then struck out this testimony, except that the stone was slippery at the time of the acci [797] dent. That the stone was dangerous was an inference from the facts, and was properly stricken out; that it was always slippery in the winter was a loose generalization, and obviously a like inference. The plaintiff was permitted to give the particular facts respecting its antecedent condition, and was not prejudiced by this ruling. Judgment affirmed, with costs. All concur.