Statement of case. lage of Ithaca, 16 N. Y. 158; McCarthy v. City of Syracuse, 46 id. 194; Hinds v. City of Lockport, 50 id. 236; Sewell v. City of Cohoes, 75 id. 45; Davenport v. Luckman, 37 id. 568; Diveny v. City of Elmira, 51 id. 506; Clifford v. Dam, 81 id. 52; Dillon on Municipal Corporations [1st ed.], 571; Cooley on Torts, 625, 626.) Defendant having officially recognized the street, both by resolution and by working on it, is estopped from questioning that it is a public street. (Sewell v. City of Cohoes, 75 N. Y. 45; 7 Gray, 338; 13 Vt. 424; 45 id. 99.) Defendant will not be permitted to escape liability simply because it took no action in the premises. (Hyatt v. Village of Rondout, 44 Barb. 395; 41 N. Y. 619; Hinds v. City of Lockport, 50 id. 239; Dillon on Municipal Corporations [1st ed.], § 753.) It is not essential who built the walk, nor whether it was built by the order, or under the supervision of the municipal officers; the only question is, did the corporation allow it to be used for public travel. (Requa v. City of Rochester, 45 N. Y. 129, 134; Niven v. City of Rochester, 76 id. 621; James v. City of Portage, 48 Wis. 677; Tuck v. City of Ripon, 52 id. 200; Oliver v. City of Kansas, 69 Mo. 79; Beatty v. Town of Duxbury, 24 Vt. 155; Johnson v. City of Milwaukee, 46 Wis. 571; Potter v. Castleton, 53 Vt. 440, 441; State v. Compton, 2 N. H. 518; Lafayette v. Larson, 73 Ind. 367; Urquhart v. City of Ogdensburg, 18 Weekly Dig. 261; Bloomington v. Bay, 42 Ill. 508; Hiller v. Village of Sharon Springs, 16 Weekly Dig. 12.) This sidewalk, in the condition the referee finds it was at the time of the accident, was an obstruction in one of the public streets of the village of Ithaca, which it was the duty of the board of trustees to order removed after notice. (Hume v. Mayor, etc., 74 N. Y. 275; Clifford v. Dam, 81 id. 53; Oliver v. City of Kansas, 69 Mo. 79; Todd v. City of Troy, 61 N. Y. 506.) S. D. Halliday for respondent. If there was no defect in the surface of this walk, and a man should walk off from it in broad daylight and receive injuries, he could not have recovered, Opinion of the Court, per Danforth, J. because he failed to put his eyes to that use which is required of persons of ordinary care, and because he negligently failed to avoid defects which were plainly visible. (61 Barb. 437.) A notice to defendant, either actual or constructive, was necessary. (59 N. Y. 660; 45 id. 129.) Defendant is not responsible or liable for a wrongful exercise of discretion by its board of trustees in deciding that there ought or ought not to be a walk built at any particular spot, nor can the court exercise a discretion which is confided solely to the board of trustees. (Urquhart v. City of Ogdensburg, 81 N. Y. 67; 50 id. 238; 32 id. 489; 5 Lans. 16; 1 Denio, 595; 3 Duer, 406; 3 N. Y. 467; 9 id. 169.) DANFORTH, J. The place of the accident was a public street in the village of Ithaca. Its sidewalk was uneven upon the surface and slanting; it extended over and so bridged an excavation, three or four feet deep, at the bottom of which was a pile of sharp cornered stones, of such shape that a person falling upon them would receive serious injury. There was no railing or other guard upon either side of the walk. It does not appear to have been built by the defendant, but had been in this condition for about one year, and the defendant had notice of it a long time before the 13th of June, 1879. On that day the plaintiff, while traveling on foot over the walk, without fault on her part and by reason solely of its defective and unguarded condition, was precipitated from it upon the stones below. She was injured and brought this suit. The above facts were found by the referee, and he directed judgment in her favor. The General Term has reversed this decision upon the sole ground that the defendant neither built nor ordered the construction of the sidewalk. In this was error. By charter the defendant's trustees are made commissioners of highways, and among other things are empowered to construct, repair or discontinue its streets and sidewalks, "and prevent the incumbering or obstructing the same in any manner." (Laws of 1864, chap. 257; Laws of 1871, chap. 140; Laws of 1875, chap. 287.) The Opinion of the Court, per DANFORTH, J. order appealed from assumes that if the building of the walk had been a corporate act the defendant would have been liable. That is well settled. (Conrad v. Trustees of Village of Ithaca, 16 N. Y. 158.) In such case it would be sufficient to show that the work was done by its authority. If the structure which caused the injury is erected on its land, or on premises which it controls, by permission of its officers, the same result must follow. An equal liability is incurred when by omission to repair or compel the removal of a walk constructed without their authority, but of the existence of which they have notice, a way dangerous for travel is allowed to stand within the limits. of its streets. In such a case it is their duty to repair or remove it, and with money in hand or power to procure it, there is no ground for irresponsibility. One or the other of these things must be done. It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is matter of discretion not to be regulated by the courts, yet when a sidewalk is built with or without its permission, it becomes responsible for its condition and bound so long as it exists to keep it in order. This duty is ministerial and not judicial. (Hines v. City of Lockport, 50 N. Y. 239; Hyatt v. Village of Rondout, 44 Barb. 395; 41 N. Y. 619; Vogel v. Mayor, etc., 92 id. 10; 44 Am. Rep. 349.) In this case, therefore, it can make no difference how the walk came into existence, if the corporation, with notice, permitted it to be used for public travel. By the act of the builder, and acceptance or acquiescence in the building of it on the part of the defendant's officers, they had control over it, and it became the property of the village as completely as if it had been put in position by the village itself. The principle upon which the above cases were decided uphold this proposition, and the case of Requa v. City of Rochester (45 N. Y. 129; 6 Am. Rep. 52), to the same effect, is so like the case before us as to make it decisive in favor of the appellant. That of Urquhart v. Ogdensburg (91 N. Y. 67; 43 Am. Rep. 655) is relied on by the respondent. There the sidewalk needed no repair and the complaint related to the plan of its Statement of case. construction. As that was within the judicial discretion of the defendant, negligence could not be predicated of it. The learned counsel for the respondent also seeks to sustain the order of the General Term upon grounds not noticed by them, alleging that the evidence failed to disclose either defects in the walk or proper care on the part of the plaintiff in using the walk. It is a sufficient answer to these positions if there was evidence, which, in some reasonable aspect, might sustain the finding of the referee. In such a case it will not be reviewed by this court. An examination of the testimony shows that there is nothing obviously wrong in his conclusions and we find no reason for interfering with them. The merits were well considered, and the record discloses no legal error committed by the referee. His decision stands upon sound policy and is a proper recognition of the duty of public officers to have regard to the business intrusted to them, upon the performance of which the safety of the citizen depends. The order of the General Term should, therefore, be reversed, and the judgment entered upon the report of the referee affirmed. All concur, except RAPALLO and FINCH, JJ., not voting. 94 31 BENJAMIN WRIGHT, as Receiver, etc., Appellant. v. ELBERT 110 143 NOSTRAND et al., Respondents. In an equity action brought to set aside alleged fraudulent conveyances 110 211 110 215 Statement of case. supplementary proceedings was admissible, not only against him as an admission, but also as against all of the defendants, for the purpose of affecting his credibility by showing conflicting statements. A witness for plaintiff testified to the pendency of an action against the judgment debtor at the time of the conveyances, and to an attempt, upon the part of his attorney, to delay the recovery of judgment therein. Held, that a refusal to strike out such evidence was not error; that the evidence was proper as showing motive; and that the debtor might fairly be presumed to have had notice of the proceedings on the part of his attorney. It seems that it is competent for a receiver, appointed in supplementary proceedings, to bring an action either to set aside and annul alleged fraudulent conveyances of his real estate by the debtor, and for a reconveyance of the property by the fraudulent grantee, or to set aside the conveyances as a cloud on title so as to subject the property to levy and sale on execution. In the former case, to maintain the action, it is necessary for him to show such proceedings, in relation to his appointment as receiver, as vest in him title to the real estate; in the latter it is simply necessary to show his appointment and that he rightfully represents the judgment creditor, as whose representative he brings the action, so that the judgment will be a bar against any one claiming under the original judgment. An order, made upon the application of the judgment creditor, authorizing the prosecution of the action, by the receiver, is sufficient for this purpose. Accordingly held, in an action of the latter character, commenced when the Code of Procedure was in force, under an order of the court authorizing it, no question of title being involved, it was not necessary to show a filing and recording of the order appointing the receiver, as required by said Code, in order to vest in the receiver title to the debtor's real estate, nor was it necessary to show, where the real estate was situated in the city of New York, a compliance with the provisions of the act of 1813 ( 159, 160, chap. 86, 1 R. L. 1813), in regard to recording transfers of title in the register's office in that city. In such an action a question simply affecting the regularity of the appointment of the receiver may not be raised by defendants. Proceedings supplementary to execution and for the appointment of a receiver are not special statutory proceedings, such as require affirmative proof of the facts conferring jurisdiction upon the court or officer acting when questioned collaterally, but simply proceedings in the action, and such acts are entitled to all the presumptions of regularity belonging to proceedings in courts of general jurisdiction. An order, therefore, in such a proceeding, appointing a receiver, made by the court or judge authorized to make it, is to be presumed regular until annulled in a direct proceeding; and if the order recite facts giving jurisdiction, it is prima facie evidence of the existence of those facts. Rockwell v. Merwin (45 N. Y. 166), Dubois v. Cassidy (75 id. 298). Sackett v. Newton (10 How. Pr. 561), distinguished. |