60 A.D. 560 | N.Y. App. Div. | 1901
The plaintiff was injured by falling into an open coal hole in the sidewalk, in front of premises owned by the defendant in Brooklyn. The defendant claims that he was not liable for the negligence of those who were using the coal hole at the time of the accident, they being his tenants in the occupancy of a portion of the building.
It may be conceded that the liability is based solely on negligence and not at all upon the theory of the maintenance of a nuisance. Negligence may be said to be in a general way the failure to discharge a duty. If the defendant had given up the possession and control of the entire property to tenants, it may very well be that he would be held absolved from all duty in the maintenance of a safe sidewalk for the use of public pedestrians. That is not the question presented for determination. Having retained the control of the sidewalk and the coal hole constructed by him therein under a municipal license which carried with it the duty of seeing that the hole was properly guarded and protectéd, he could not exercise the privilege without discharging the duty. And that this duty could not be so delegated as to relieve him from liability for non-performance is well settled by the authorities. (Weber v. Buffalo Railway Co., 20 App. Div. 292; Downey v. Low, 22 id. 460; Campion v. Rollwagen, 43 id. 117; Hughes v. Orange County Milk Assn., 56 Hun, 396; Jennings v. Van Schaick, 108 N. Y. 530.)
The damages are not deemed excessive, and the judgment and order should be affirmed.
Judgment and order unanimously affirmed, with costs