Reynolds v. City of Niagara Falls , 81 Hun 353 ( 1894 )

BRADLEY, J.

The plaintiff, in walking on the sidewalk along the westerly side of Main street, in the city of Niagara Falls, on the evening of June 28, 1893, stepped into a hole in the walk, and sustained an injury. He brought the action to recover the damages he sustained. The hole in the walk about seven inches in width, extending across the walk, and about the same depth, was occasioned by the absence of a plank; and the evidence tended to prove that it had been in that condition two or three months at that time, and that the street was a main thoroughfare of the city. The conclusion was warranted, upon the evidence, that the defect in the walk at the time in question was attributable to the negligence of the defendant, and that the plaintiff was free from contributory negligence. Those questions were fairly submitted to the jury, and they found upon them in the affirmative.

The questions presented by the defendant for consideration arise on exceptions to the reception and retention of evidence, and to a-certain proposition of the charge made by the court to the jury. The plaintiff was treated for his injury by two physicians, Drs. McBlane' and Cole. He was asked, ‘Did Dr. McBlane present you a bill for his' services?” After his answer in the affirmative, objection upon the ground that he could not recover for medical services unless he had paid for them was overruled, and exception taken. The plaintiff further answered, “The amount of the bill was $20.” He was then asked a similar question as to Dr. Cole, followed by a like objection, ruling, and exception, and the plaintiff answered, “$60.” Those doctors were called as witnesses, and the former testified that he charged the plaintiff $20 for his services, and that the charge was reasonable,- and Dr. Cole testified that his services were worth $100. Although the evidence thus given by the plaintiff may not alone have entitled those charges for medical services to consideration by the jury, the' evidence of the doctors was sufficient for that purpose. Gumb v. Railway Co., 114 N. Y. 411, 21 N. E. 993. And there was no error in the charge to the jury to the effect that they were permitted to include in damages the amount of the expense incurred by the plaintiff for such medical treatment. While it may not have been essentially material, for any legitimate purpose of the action, to prove that the plaintiff spoke the German as well as the English language, there was no error prejudicial to the defendant in his evidence to that effect.

Dr. McBlane, who had treated the plaintiff for a short time immediately following the injury, and saw and examined him again at the time of the trial, was asked, “In your opinion, is the present condition which you found permanent?” and, after a general objection and exception, answered, “I am inclined to think it is permanent.” Thereupon the motion of the defendant’s counsel to strike out the answer was denied, and exception taken. The witness further testified, “My opinion is that it is permanent.” The injury as-described by the doctors was a fracture of the neck of the right femur, and, as the consequence of this fracture of the thigh bone, the' right leg of the plaintiff had shortened about three-fourths of an inch, and the doctor testified that the movement of it was somewhat limited. It was to this condition that he referred in the expression of his opinion. It is urged by the defendant’s counsel that this evidence was merely speculative as to the possible developments and the condition of the limb in the future, and, within the doctrine of Strohm v. Railroad Co., 96 N. Y. 305, inadmissible. Such is not the nature of the evidence. By it the doctor expressed his opinion about the continuance of the known present condition of the plaintiff’s limb. This was clearly competent. Griswold v. Railroad Co., 44 Hun, 236; Id., 115 N. Y. 61, 21 N. E. 726; McClain v. Railroad Co., 116 N. Y. 459, 22 N. E. 1062; Alberti v. Railroad Co., 118 N. Y. 77, 23 N. E. 35.

By the charter of the defendant, it was a condition precedent to the maintenance of an action for the cause alleged by the plaintiff that the claim in writing be presented to the common council within 30 days after the date of the injury, verified by affidavit. Laws 1892, c. 143, § 53. The plaintiff’s claim in writing was in due time presented to the common council of the defendant, and it was verified by affidavit taken at Niagara Falls before A. C. Morgan, commissioner of deeds of the city of Lockport, N. Y. It was filed with the city clerk, and brought to the attention of the common council, and referred to the city attorney. No question was raised as to its sufficiency prior to the time of the trial. When it-was offered in evidence, objection was interposed on the ground that the affidavit taken before the •commissioner of deeds of the city of Lockport was an ineffectual verification of the claim, because he had no authority to take it; and it is now insisted by the counsel for the defendant that such commissioner had no power to perform such an official act beyond the limits of the city of Lockport. By the charter of the city of Lockport it was before then provided that the “commissioners of deeds of the city may administer oaths,” etc., “at any place within the county of Niagara.” Laws 1886, c. 120, § 75. This would seem to relieve the verification of the claim from any question of power of that officer to take the affidavit where it was taken in the county, unless in its exercise he was restricted to his city by the provisions of the later statute that commissioners of deeds shall be appointed by the common council of cities, and that they “shall have power to take proof and acknowledgment of all written instruments.” Laws 1892, c. 683, § 86. The method of appointment thus mentioned is the same as that prescribed by section 33 of the charter of the city of Lockport. It may be assumed that, if the power of the commissioner of deeds of that city is dependent upon the later statute, the exercise of it would be locally confined to his city, and that such limitation will be implied when nothing appears to the contrary. But the special statute on the subject of the power of the commissioner of deeds of the city of Lock-port is not in terms repealed or superseded by the general statute of 1892; and it is a rule of construction that a general statute will not, by implication, have the effect to defeat the operation of a special and local one, unless it is manifest that such was the legislative intent. In re Commissioners of Central Park, 50 N. Y. 493; People v. Quigg, 59 N. Y. 83; Van Denburgh v. President, etc., of Greenbush, 66 N. Y. 1; In re Delaware & Hudson Canal Co., 69 N. Y. 209; Whipple v. Christian, 80 N. Y. 523. The provision of the charter of the city of Lockport which permits its commissioners of deeds to exercise their official power beyond its municipal limits, and within the county of Niagara, is deemed in force, notwithstanding the provisions of the later statute before mentioned; and for that reason, without considering any other, the exception to the introduction in evidence of the verified claim was not well taken. No other question requires any expression of consideration. The judgment and order should be affirmed. All concur.