Lead Opinion

Rumsey, J.:

On Sunday, the 19th of April, 1898, the plaintiff was riding a bicycle down Broadway. For some distance above Canal street he had been riding on the slot in the western track of the defendant’s road. Just before reaching Canal street he came to a place where the slot was considerably wider than in other places, and at that point the forward wheel of his bicycle went through the slot down to the hub so that the plaintiff was thrown over the handle bars and seriously injured. For these injuries he brought this action to recover damages. The complaint contained an allegation that the defendant maintained a nuisance at the point where this accident occurred. It also contained an allegation under which evidence of negligence would have been competent. At the close of the plaintiff’s case the court required his counsel to elect whether he would go to the jury upon the question of negligence or would proceed against the defendant for maintaining a nuisance at that place. Upon his declining to elect the court held that the action was brought and should be presented to the jury upon the ground of the maintenance by the defendant of a nuisance at the place where the accident occurred. It was presented to the jury upon that theory and resulted in a verdict for the plaintiff.

The only question upon this appeal- is whether it can be said that the defendant maintained a nuisance at the place where the accident *186occurred, or whether the plaintiff could recover only for the negligence of the defendant in not constructing the slot in such a way ' that the highway was safe.

The undisputed evidence was that the usual width of the slot between the tracks was from five-eighths to three.-fourths of an inch, but that at this point the slot as it had been originally constructed was from one and a half to two inches wide and that it continued for that width for a very short distance, so that when the wheel of the plain- ' tiff’s bicycle went into the wide portion of the slot it was driven into the narrow part before its headway could be stopped and was with difficulty extracted. Upon these facts it is claimed that the construction of the slot in this manner in the center of the highway was an unnecessary defect, and that the defendant was liable for it as though for a nuisance.

Any unauthorized excavation in the highway which makes it dangerous to persons lawfully using the street is a nuisance. (Wood Nuis. §§ 312-314; Clifford v. Dam, 81 N. Y. 52.) Where one ' sues for an injury caused by such a defect in the highway, it is not necessary for him to assume in his complaint that the defect was put in the highway by lawful authority, but he may proceed upon the notion that the defect is unauthorized, and, therefore, that it is a nuisance, and he may frame his complaint upon that theory. If the defendant has authority to make the excavation he must set it up and prove it. Not only must he prove the authority but that the excavation which he claims he was authorized to make, was properly made in pursuance of the authority. (Clifford v. Dam, supra.) If it appears that the purpose for which the defendant is authorized to make the excavation might have been attained without - the creation of a nuisance in the highway, but that the opening was made in such a way as to create a nuisance, the defendant is not protected by the grant of the authority to interfere with the highway, and is still liable for the nuisance, not because he has interfered . with the highway without authority but because he has not exercised . his authority in the only manner in which the privilege permitted him. (Bordentown & S. Amboy R. R. Co. v. Camden & Amboy R. R. Co., 17 N. J. Law, 314; King v. Morris and Essex Railroad, 18 N. J. Eq. 397.)

The jury might have found that that was the state of facts in this *187case. It appeared that the ordinary width of the slot was from five-eighths to three-fourths of an inch, which it might he inferred did not render the slot unsafe. It appeared that the slot at this particular place was from one and a half to two inches wide; that people riding their bicycles there had gone through it before, and from all this the jury might have found that the slot was unnecessarily wide, and, therefore, that the authority granted to the defendant to make.this excavation in the highway was not pursued with proper care and that consequently as the authority was not properly used the defendant had created a nuisance. This conclusion requires that the judgment and order should be affirmed, with costs.

Van Bbunt, P. J., O’Brien and Hatch, JJ., concurred; Ingraham, J., dissented.

Dissenting Opinion

Ingraham, J. (dissenting):

I do not think there is any evidence to sustain a finding that the defendant maintained a nuisance. The defendant had authority to construct this railway on Broadway propelled by an underground cable, the connection between the car and the cable to be through an open slot in the roadway; and it is settled by a long line of authorities that when an excavation'is made in a street with the consent of the proper municipal authorities, the rule of liability rests upon the ordinary principles governing actions of negligence. The person receiving the license is held to impliedly agree to perform the act permitted with due care. for the safety of the public, and is made liable for any violation of duty in this regard. It is undoubtedly true that “ When conditions, whether express or implied, are annexed to the license, substantial compliance therewith is essential to the protection of the licensee, but consent and compliance relieve the owner from the imputation of - trespassing in doing the act consented to, and place him in the position of one liable for negligence only.” (Babbage v. Powers, 130 N. Y. 285.) Undoubtedly a person receiving authority or license to maintain a structure in the street, upon conditions or limitations imposed by the authority granting the license, would be bound by such limitations, so that if he failed to comply with them in a material respect he would not be relieved from the charge of maintaining a nuisance. Still, where such an authority has been granted, the burden is upon the *188plaintiff seeking to recover upon a liability based upon a nuisance to' prove such a failure. Applying this rule, it seems to me that there was no evidence to justify a finding that the defendant was guilty of maintaining a nuisance. It was proved that this slot, which was necessary for the maintenance of a railroad operated by an underground cable, existed in Broadway from the Battery to about Fiftieth street,, and was from five-eighths to three-quarters of an inch in width; that at Canal street, where there were numerous switches running from Canal street into Broadway, and also from one track to another, it was widened so that for a few feet it was about, one and a half inches wide, arid that it has been so constructed from the time the road was built. That was all the evidence as to the construction of this slot, There was no evidence that it was wider than was necessary for the proper management of the road at the location, of these switches; no evidence that any condition had been imposed by the municipal authorities, or those having charge of the matter, limiting the size of the slot, nothing but the bare fact that at this particular point the slot was wider than at other places. This is, I think, clearly insufficient .to justify a finding that the structure, as thus maintained, was a nuisance.'

I think the judgment should be reversed.

Judgment and order affirmed, with costs.