McKenna v. Mayor 15 Jones & S. 541, 47 N.Y. Super. Ct. 541

JAMES McKENNA, Appellant, v. THE MAYOR, &c., Respondent.

Before Sedgwick, Ch. J., and Tbuax, J.

Decided April 4, 1881.

Obstructions to highway—what constitute—when amount to nuisance— liability of municipal corporations for.—New York city.

Appeal from a judgment dismissing the plaintiff’s complaint.

The action is brought to recover $10,000 damages for injuries sustained by the plaintiff from falling into an excavation in and adjoining the sidewalk in front of the building known as No. 452 Broadway, in the city of New York.

At the close of the plaintiff’s case the judge at the trial dismissed the complaint, refusing the request of the counsel for plaintiff, to submit the question of defendant’s negligence to the jury, and delivered the following opinion:

“Any encroachment upon or obstruction of a public street in the city of New York, during the course and in consequence of the erection of a building on the line of the street, can, even if done under permit from the corporation, be justified only by the necessities of the case. Whenever extended or prolonged beyond this, the encroachment or obstruction becomes a nuisance. Whoever creates or maintains such a nuisance becomes liable to any one who without fault on his part, sustains an injury therefrom; and if it exists for a length of time sufficient to make its existence notorious, and to afford a reasonable opportunity to the corporation, through its agents charged with *542that duty, to learn of its existence, the corporation becomes liable if it fails in its duty to abate it.

“Under the statutes and laws relating to the city of New York, it is one of the general duties of the corporation to keep the streets safe and free and clear, and in the discharge of that duty the proper officers must exercise a reasonable supervision during the erection of buildings, in order to prevent the continuance of nuisances, which, as experience teaches, will occur in spite of legislative enactments. For a failure in that respect the city may be made to respond in damages.

“But the difficulty in plaintiff’s case is that the accident cannot be said to have been caused by any encroachment upon, or obstruction of, the sidewalk, though the sidewalk has been for some time more or less obstructed and encroached upon in consequence of the destruction of -the building with others by fire. The temporary bridge upon which' he stepped, and which was built so as to come close up to the line of the front of the building, though in a certain sense an encroachment upon, and an obstruction of, the public highway, was not the cause of the accident. Plaintiff says he saw it when he stepped upon it. The planking of it did not give way under him, nor is there any evidence that either by insufficient strength or in some other way it contributed. On the contrary, the bridge seems to have been of sufficient strength, and hence, for the purposes of the case, the highway itself was secure enough. The mere fact that no lights were upon the bridge, creates no liability on the part of the corporation, though it may against those who had charge of the erection of the building. The corporation performed its duty in that respect by the passage of the ordinance requiring the owner or contractor to do so. .

“The accident-was caused by the existence of a hole'alongside of the highway and within the line of *543the building. That hole consisted of an open space under a window-sill, in the front of the building then in process of erection. All other parts of the front had been boarded up, and if this open space had been boarded up like the rest, the accident would not have happened. It was only two feet six inches in height, and, indeed, it is somewhat strange that the plaintiff fell into it. But he did. How, it seems to me, it is of no use to claim that the city authorities were bound to see to it that the bridge, which had a railing on its westerly side, was provided with another on the easterly side, on which the accident happened, because on that side the house front, when properly boarded, was sufficient. The windowsill itself was just as good as, if not better than,- a railing. It was in about the same height from the floor of the bridge that the railing, if any, would have been put, and, if the manner in which the plaintiff must have fallen, for he himself remembers nothing at all about it, is considered, a railing would not have saved him any more than the window-sill did; for between him and that open space walked his sister, and she it must have been that fell first and dragged him down ; but it does not even appear how she came to fall.

“The only cause of the accident, therefore, was the existence of that open space under the window-sill. It should have been boarded up like the rest of the front of the house.

“How, assuming that in every aspect of the case it was a nuisance for which those who had charge of the erection of the building are .liable, the corporation can be held, if at all, only upon the additional proof that it existed sufficiently long to attract the attention of the proper officers. Upon this point the nature of the nuisance is an important element. The bridge at that time had existed from one to four days, but no longer. *544But there is no proof whatever as to the length of time this opening existed in the manner it was found to exist on the night in question. The whole remaining front of the building having been boarded up, the authorities had a right to assume that this open space under the window-sill would be secured in the same way, at least at the close of the work of each day.

“ When, therefore, the peculiar nature of this nuisance is considered, the corporation can be held liable only, if at all, upon strict proof of its notorious existence, and of the continued neglect of those in charge of the building to do their duty in the premises.

“ Plaintiff’s case, even in the aspect most favorable to him, fails to come up to these requirements, and consequently his complaint must be dismissed.”

Richard O'* Gorman, attorney, and W. O. Trull, of counsel, for appellant.

William O. Whitney, corporation counsel, and G. P. Andrews, assistant corporation counsel, for respondent.