Garrison v. The Mayor, &c., of the City of New York. be avoided) at the time of the construction, as well as for such as may be found afterwards on investigation. The axle-tree contained a defect which could be seen at the time it was used in making the coach, and could have been detected by taking off the wood work. 1 Carrington & Payne, 636, lays down the rule "that a count upon an undertaking to carry a passenger safely cannot be supported without proof of actual negligence of the defendant. (Ingalls v. Bills et al., 9 Met., 1–15.) In Bailey v. The Mayor, (3 Hill, 541; affirmed, 2 Denio, 433,) the action was for want of proper care and skill in the construction of the dam. Abundant evidence was given tending to show that it was not properly constructed for the uses intended. In 5 Sandford, 289, the action was for negligence of the defendants in not repairing a public street. It appeared in evidence that there had been an excavation made in the street; that it was not protected or indicated by a light to warn passers-by. The plaintiff at night met with the accident. Proof of negligence was given, though the case turned upon the question of liability of agents of the defendants, and was defended mainly upon that ground. In 3 Comstock, 464, the action was for negligence in constructing a culvert. Evidence was given, and the Referee found that the construction was insufficient. In 3 Hill, 612, notice of the insufficiency of the sewer and of the necessity to repair, was given before the injury. In 23 Wendell, 446, the defendant had constructed a bridge over which, as a part of the public highway, the public had the right to pass, and were constantly passing, and the bridge was held to be a nuisance, and the defendant to be liable for any damage resulting from accidents happening by reason of the defendant's neglect at all times to keep that part of the road as free from liability to accident as if such bridge had not been constructed. The defendant was a wrong-doer, and became an insurer to the public that the bridge should at all times be safe and free from liability to occasion damage. In such a case, therefore, proof of the accident throws the onus upon the defendant to excuse his prima facie negligence. The same principle was properly held in this Court, (affirmed, 18 N. Y. R., 84,) in the case of Congreve v. Morgan. (5 Duer, 495.) Garrison v. The Mayor, &c., of the City of New York. The defendants in the case under consideration were engaged. in the legal use of their own property, and no nuisance existed. The wharf was not shown to be out of repair or unfit for use, and no inference of omission or neglect of duty could arise. If a tenant covenant to keep the house in repair, and it becomes ruinous by accident, the covenant will not become broken till after a convenient time for its repair has elapsed. (2 Shep. Touch., 173, ch. 7.) In the case of Mayor of Lyme Regis v. Henly, cited by the counsel for the appellant, (plaintiff,) it was distinctly held, that in order to make the corporation liable, four things must appear, and among them, 3d. That the place in question was out of repair. (5 Sandf., 315, 21, 3.) There was no conflict of evidence. The facts were indisputable. An accident happpened by which it was discovered that a plank had previously in part become decayed and rotten. The plaintiff claimed that the fact of decay was prima facie evidence of negligence of the defendants. In my opinion the evidence would not have warranted the jury in finding the defendants guilty of negligence or carelessness; the action, therefore, could not be sustained, and the Court properly dismissed the complaint. Judgment should be entered for the defendants, with costs, &c. PIERREPONT, J., concurred. WOODRUFF, J. (Dissenting.) It is conceded that the defendants are the owners of the pier and wharf at the foot of Spring street. That wharf forms the lower extremity or terminus of Spring street on the North river; it forms the landing place where the street or highway meets the river. The proof showed that the coach, with the plaintiff and his trunk, was driven to that wharf, in due course of business, to deliver some passengers to a steamboat there lying; that on turning the coach one of the planks forming the covering of the wharf broke by reason of its being rotten, the wheel of the coach went down and the coach was partially overturned, the plaintiff's trunk was thrown into the water, and his goods were damaged. It further appeared that there was dirt on the surface of the wharf, so that the defect in the plank was not apparent from mere observation while walking or traveling over it. Garrison v. The Mayor, &c., of the City of New York. I think that upon these facts alone the plaintiff should not have been nonsuited. The defendants are charged with the duty of seeing that the streets and highways of the city are kept in proper repair and safe condition for use by the public. (Hutson v. The Mayor, &c., 5 Seld., 163; 5 Sandf., 289; Storrs v. The City of Utica, 17 N. Y. R., 104.) This is not denied; nor is it claimed that their duty in regard to the public wharves at the foot of the streets, open and used as public landing places, is any less stringent. Nor can such a claim be made, especially when they are not only so used, but they are for the purpose of collecting wharfage and deriving profits therefrom, regarded as being the very property of the corporation. If, then, the duty exists, it carries with it the incidental duty to use some diligence to see that the wharves do not, by the operation of ordinary and natural causes, get out of repair or go to decay, and so endanger the lives or property of those who in the lawful pursuit of their business have occasion to use them. (See the above cases and Henly v. The Mayor of Lyme Regis, 5 Bing., 91.) The doctrine contended for by the defendants seems to me to be, that, having built a wharf, the defendants may rest without subjecting it to any examination for an unlimited time, and until some one gives them notice that repairs are necessary, or until the want of repairs becomes so apparent to a merely superficial observation that they must be deemed chargeable with notice. This view of their duty will often result as in this case; the surface of the wharves are of course in some degree covered with dirt, and knowledge of the defect will only be gained when an accident happens. In the present case, the question is, whether enough was not proved by the plaintiff to cast upon the defendants the burden of showing due diligence in the performance of their duty. They are not insurers against accidents. They are not bound to anticipate every cause of defect in the streets, or liable for not remedying every defect, when it is not shown that they had notice, or by reasonable diligence might have known of its existence. (McGinity v. The Mayor, 5 Duer, 674.) They cannot anticipate every case of neglect or misconduct of individuals. which may, for the time being, create defects in the street, which Bosw.-VOL. V. 64 Peckham v. Ketchum et al. however it will become their duty to remedy so soon as notified, and so soon as by reasonable diligence they might know it, whether notified or not. The wharf in this instance was unsafe. The plank broke because it was a rotten or decayed plank. No evidence was given by either party as to the time when the wharf was constructed, or under what precautions to secure its being done properly. At the time of the accident it was not safe. This was owing to a defect in its construction, or to its being suffered to remain until by the operation of natural causes one of its planks had decayed. The corporation must be held to know that planks are liable to decay; and, knowing this, it is their duty to use at least ordinary diligence, in view of the uses to which wharves are devoted, to inspect them and see that they are in a proper condition; and here enough was done to devolve upon them the burden of either showing that such diligence was used, or that by such diligence the defect could not have been discovered and remedied. I think the nonsuit should be set aside and a new trial ordered, costs to abide the event. Judgment ordered for the defendant. SETH W. PECKHAM v. KETCHUM, ROGERS & BEMENT. 1. Where a broker is instructed to purchase, as such broker, for the plaintiff, a specified number of shares of the stock of a corporation named, and he accordingly contracts to buy the specified number and receives a certificate of stock regular in form and issued by the proper officer of the corporation for the specified number of shares, receives payment therefor from his principal and makes payment to his vendor, and such certificate proves to be valueless and not to represent actual stock, such broker, where he has acted in good faith and according to the customary course of business among brokers in such cases, is not liable to his employer for any damage resulting to him from such transaction and purchase. Peckham v. Ketchum et al. 2. It will not affect the question of such broker's liability that the shares he so bought were transferred to him by the vendor on the books of the Company, and by him transferred to his principal, and that he did not disclose to the vendor his agency in the transaction-that being according to the established and customary course of business in such transactions. (Before HOFFMAN and MONCRIEF, J. J.) Heard, October 21; decided, December 17, 1859.) THIS action comes before the Court upon an agreed state of facts, submitted pursuant to section 372 of the Code. On the 14th of June, 1854, the plaintiff called at the office of Ketchum, Rogers & Bement, bankers and stock brokers, and asked them if they had any shares in the New York and New Haven Railroad Company for sale. They said they had not, but would, if desired, buy some for him, that day, at the Brokers' Board. He ordered them to buy for him ten shares, at a price not exceeding $87 per share. The same day they sent to the plaintiff the following memorandum: He sent them his check that day for the $867.50, and they stated that they would transfer the stock referred to in the memorandum into his name on the books of the Company that day, but the certificate would not be ready until the next day. The next day they delivered to him a certificate in due form for ten shares of said stock, signed by Robert Schuyler, the Transfer Agent of said Railroad Company, who was the proper officer to issue the same. The firm of Ketchum, Rogers & Bement, after receiving the plaintiff's order, and on the same day, bought ten shares of one Charles Graham, who in fact had no stock, but had, in good faith, made a contract with Moses Allen for the delivery of ten shares that day. Graham, on making the contract with defendants' firm, went to the office of the Railroad Company, and, with the consent of |