FOURTH DEPARTMENT, DECEMBER TERM, 1962. Frank T. Miller, for the appellant. D. P. Morehouse, for the respondent. ADAMS, P. J.: [Vol. 77. The evidence of the defendant's negligence was not altogether satisfactory, and as the law was understood at the time of the trial the learned trial justice was doubtless justified in pursuing the course he did, provided he was convinced that he would be compelled to set aside a verdict if perchance one were rendered in favor of the plaintiff. Nevertheless it cannot be said that there was no evidence of any negligence upon the part of the defendant. The witness June testified that he saw the accident and that he observed the defendant come "straight out of the bicycle path and cut right across the road right in front of the horse so he hit the horse and the horse threw up his head;" that the horse then reared and broke the whiffletree and ran until he reached the culvert, when the occupants of the wagon were thrown out. Upon his cross-examination this witness admitted that before the trial he had told the defendant's counsel that he knew nothing about the accident, and his evidence was so contradictory and unsatisfactory that the learned trial judge obviously gave it no credence whatever. While we are not prepared to take issue with the trial court upon this particular feature of the case, it is but fair to say that there was some other evidence given which it is claimed tended to support that of this witness. The plaintiff testified that the defendant left the cinder path, and while he does not claim that he ran into the horse, he does say that he came in front of him upon his wheel without any warning and so close to his head as to frighten him; and it is conceded that after the accident the defendant voluntarily handed the plaintiff his card, telling him to have his wagon and harness repaired and he would pay for the same. We think that, however the trial court may have been impressed with the unreliability of the witness June, the jury were entitled to consider his testimony and in connection with the other evidence in the case to give it such weight as they might deem proper (People v. Chapleau, 121 N. Y. 267; Williams v. D., L. & W. R. R. Co., 155 id. 158; Ten Eyck v. Whitbeck, 156 id. 342); and that, App. Div.] FOURTH DEPARTMENT, DECEMBER TERM, 1902. in view of the rule which has been recently established by the decision of the Court of Appeals in the case of McDonald v. M. S. R. Co. (167 N. Y. 70), it was error to withhold the question of the defendant's negligence from the jury. This much was expressly conceded by the learned counsel for the defendant upon the argument, but it is now claimed that, even admitting the defendant's negligence, there is no evidence that it in any wise caused the death of the plaintiff's intestate. This contention, in our judgment, cannot be sustained; for it appears that the night after the accident Mrs. Shortsleeve suffered pain in her head, neck and shoulders; that her husband bathed the sore parts with witch hazel; that this treatment was continued night and morning for some time thereafter without relieving the pain; that while attempting to perform her customary household duties, Mrs. Shortsleeve suffered much pain; that in three or four weeks after the accident she was compelled to take to her bed; that on the third day of November a physician was called, who attended her from that time until the day of her death; that shortly after the physician was called she gave premature birth to a child which was deformed, and that subsequently she went into convulsions, in one of which she died early in January. These convulsions her physician testified resulted, in his opinion, from an injury to her spine, and in answer to a hypothetical question he also expressed the opinion that the condition in which he found Mrs. Shortsleeve was. due to the injury she received at the time of the accident. In view of this evidence we fail to see how it can be claimed that the cause of her death was not a question of fact for the jury, and, therefore, it follows that a new trial must be granted. Judgment and order reversed upon questions of law only and a new trial ordered, with costs to the appellant to abide the event, this court having examined the facts and found no error therein. MCLENNAN, SPRING and WILLIAMS, JJ., concurred; DAVY, J., not sitting. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. FOURTH DEPARTMENT, DECEMBER TERM, 1902. [Vol. 77. OCORR & RUGG COMPANY, Respondent, v. THE CITY OF LITTLE FALLS, Appellant. CHARLES K. BENJAMIN, as Surviving Partner of the Firm of BUTLER & BENJAMIN, and Others, Respondents, Impleaded with ROLLIN H. SMITH and Others, Defendants. Contract to erect a school building in the city of Little Falls-its board of education is not a corporation -the city is liable on contracts made by the board — when a failure to obey a statutory provision as to contracting a city debt is not available to the city as a defense to such a contract- -nor the absence of the formal consent of the architect - what subletting of work to be done under a city contract does not violate chapter 444 of the Laws of 1897 — waiver of an architect's certificate — the reopening of a case is discretionary. The board of education of the city of Little Falls and of the union free school district of the city of Little Falls, created by section 42 of the charter of that city (Laws of 1895, chap. 565, as amd.), whose powers and duties are defined partly by the charter and partly by the Consolidated School Law, is not a distinct corporate entity as is a board of education created by the Consolidated School Law, but is simply one of the agencies of the city, and a contract made by such board of education within the scope of its agency and within the provisions of the charter is binding upon the city. In an action brought to foreclose a mechanic's lien for materials furnished under a contract for the erection of a school building made by the board of education of that city, the fact that the proposition to raise the sum (which was in excess of $5,000) necessary for the erection of the school building was not submitted to the electors of the city, as required by section 80 of its charter, is not available to the city where it appears that such defense was not pleaded in its answer and that the money applicable to the discharge of the obligation incurred by the contract has been raised and is in the city treasury. The city cannot escape liability upon the contract because a portion of the work was sublet by the contractor without the formal consent of the architect in violation of a clause contained in the contract where it appears that before the contract was made the contractor announced in the presence of the architect and the board of education his intention of subletting a portion of the contract work, and that no objection was made thereto either by the architect or the board, and that the sub-contractor had, with the knowledge of the architect and the board of education, performed his part of the work for over a year without objection and received partial payments therefor. Chapter 444 of the Laws of 1897, providing that if any contractor to whom a municipal contract is let shall, without the previous written consent of the department or official awarding the same, assign, transfer, convey, sublet or otherwise dispose of his contract or his right, title or interest therein, or his power to execute such contract to any other person, company or corporation, App. Div.] FOURTH DEPARTMENT, DECEMBER TERM, 1902. the municipal corporation shall be relieved and discharged from any and all liability and obligation growing out of said contract to said contractor, and to the person, company or corporation to whom he shall assign, transfer, convey, sublet or otherwise dispose of the same, is designed to prevent a party obtaining a municipal contract from assigning the whole or the substantial part of it to some one else and thus relieve himself from responsibility in respect thereto. It was not designed to prevent a practical mason who obtains a contract to erect a school building in a city from subletting the carpenter work to a practical carpenter. Where a contract for the construction of a building provides that payments shall be made thereunder upon the certificate of the architect, and, during the performance of the work, the owner declares the contract forfeited and takes possession of the building for the purpose of completing the same, the production of the architect's certificate is not necessary to enable a person who furnished material used upon the work to maintain an action against the owner to foreclose his lien. A motion, made upon a reference after the evidence had been closed, to allow the plaintiff's case to be reopened and permit him to offer additional evidence in chief, is addressed to the discretion of the referee. APPEAL by the defendant, The City of Little Falls, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Herkimer on the 11th day of January, 1902, upon the report of a referee adjudging that the plaintiff and the several defendants mentioned in the judgment had valid liens upon a school building in the city of Little Falls and were entitled respectively to recover the amounts mentioned therein, except from that portion of said judgment which reads as follows, viz.: "It is further adjudged and decreed that as against the defendants Rollin H. Smith, William R. Chapple, Jay S. Newell, George F. Girvan, George W. Boyle and M. A. Richards, the complaint be disinissed, without costs." The action was commenced to foreclose a mechanic's lien filed by the plaintiff to secure a balance claimed to be due and owing to it for materials furnished to Messrs. Butler & Benjamin, as copartners, and to Charles K. Benjamin, as surviving partner, who were sub-contractors for doing the carpenter work in the erection of the Little Falls high and grade school building in the city of Little Falls, N. Y., under the defendant William G. Dove, who entered into a contract with the city of Little Falls, by certain individuals APP. DIV.-VOL. LXXVII. 38 FOURTH DEPARTMENT, DECEMBER TERM, 1902. [Vol. 77. named, who constituted the board of education of said city, for the erection and completion of said building. John D. Beckwith and S. H. Newberry, for the appellant. John D. Lynn, for the plaintiff and for the defendant Benjamin, respondent. MCLENNAN, J.: The city of Little Falls is a municipal corporation created by chapter 565 of the Laws of 1895, which act, as amended, constitutes its charter. By the charter the territory within the limits of the city is made a union free school district, and provision is made for a board of education consisting of six members, its powers and duties being defined by the charter and the Consolidated School Law of the State. (Laws of 1894, chap. 556, as amd.) Such board of education was organized in accordance with the provisions of the act, and at all the times in question was composed of the persons designated as such and named as defendants in this action. Early in the year 1898 the project of erecting a high school building in the city of Little Falls commenced to be agitated, with the result that at an adjourned special meeting of the board of education, held on the 1st day of February, 1898, a resolution was unanimously adopted authorizing the publication of the "notice prescribed by Section 9, Article 2, Title 8, of the Consolidated School Law, of special meeting of the legal voters of the school district to be held at Church street school house, Tuesday, March 8, 1898, at 7.30 P. M., to consider a proposition to build new school buildings on the site owned by the district and now occupied by the academy and Benton hall in the eastern division for the estimated sum of $65,000, to be paid in annual installments of $2,000 each," etc. A formal notice of such election, signed by all the members of the board of education, was prepared and published, and at the time mentioned the election was held, the president of the board calling the meeting of the electors to order. A chairman was chosen upon his motion. Upon motion of the chairman a secretary was chosen, and two tellers were selected to receive the ballots. Four hundred ballots were cast, of which three hundred and eleven were for and eighty |