James S. Carpenter and another v. The Central Park, North and East River R. R. Co.

James S. Carpenter and another v. The Central Park, North and East River R. R. Co. (Decided in January, 1872.) A corporation sued in the New York Marine Court, in an action over the subject-matter of which the court has jurisdiction, waives any objection to the jurisdiction of the person by appearing and contesting on the merits. A question as to the usual method of constructing street railroads, prefaced by an inquiry whether the witness had observed the manner of construction, is not one calling for the special knowledge or skill of an expert. On the question whether a street rail has been properly laid, an expert may give his opinion based upon previous testimony as to the condition of the rail at a particular time. A street railroad is responsible for an accident which could not have occurred except for the improper laying of a rail, even though the municipal authorities were also negligent to the same extent in improperly paving the street. It seems, that a street railroad, having power to take up and replace pavement on the line of its road, is responsible for an accident occurring through defective pavement on their track, even though the municipal authorities are bound to keep the pavement in repair. Reported in full in 11 Abb. Pr. N. S. 416. Appeal by defendants from a judgment of the general term of the Marine Court, affirming a judgment entered on. the verdict of a jury. Brown Hall & Vanderpoel, for appellants. E. Bartlett, for respondent. [MAJORITY] Opinion of the court by Daly, Ch. J. Judgment affirmed. Present, Daly, Ch. J., Robinson and J. F. Daly, JJ.