37 N.Y.S. 281 | N.Y. App. Div. | 1896
The complaint alleges that the defendant is the owner and occupant of the premises known as No. 30 East Thirty-fourth street in the city of New York, and as such owner and occupant had and has the care and control of the areas, areaways and other appurtenances therewith connected and belonging; that on the 30th day of January, 1895, a sheet of ice partially covered the portion of the sidewalk in said East Thirty-fourth street, a public street or highway in front of said premises, and ran or extended from a gate or door leading from an area, or areaway, of said premises into and upon the said sidewalk and across the same; that said ice was formed from water proceeding from the melting of a heap or pile of snow or ice which had been carelessly and negligently left by the defendant or her servants in said area or areaway behind or near said gate or door; and said defendant, or her said servants, carelessly and negligently allowed the said water to flow or run from said snow or ice
No statute or ordinance is alleged that makes it the duty of the defendant to keep the sidewalk or the street in a safe condition. The act of the defendant, which, it is alleged, was negligent, was leaving a pile of ice or snow upon her own premises adjacent to the street, and allowing water to flow or run from said snow or ice upon the sidewalk, and that the water freezing thereon caused the street to become unsafe. It is not alleged that the defendant melted the snow or ice upon her premises, or froze the water flowing from such melting snow or ice upon the street.
It is settled that no obligation to repair a street or sidewalk rests upon the lot owners at common law, but that the duty to do so, if any, arises out of the statutory obligations imposed by the State or municipality upon them. (City of Rochester v. Campbell, 123 N. Y. 412.) And to entitle a person injured in a public highway to recover for injuries sustained, because of a defect or obstruction in the highway, it is necessary to allege and prove that the obstruction which caused the injury was unlawfully placed in the street by the defendant or his servants, or that it was negligently left by him unguarded. (City of Rochester v. Montgomery, 72 N. Y. 68.) This principle is illustrated in the case of McGoldrick, v. N. Y. C. & H. R. R. R. Co. (20 N. Y. Supp. 914). There the defendant had constructed a water tank and spout, from which its engines obtained water. The end of this spout, when turned off, was about four feet from the sidewalk, and water was accustomed to drip or flow therefrom upon occasions when it was used and turned off.
Applying this ¡Manciple, it is clear that the coirfplaint is fatally defective in not alleging that the defendant had created the obstruction upon the sidewalk, or had used the sidewalk in any way for her own purposes. She had simply allowed snow or ice to remain upon her premises. The effect of the sun upon this ice or snow caused it to melt, and the water subsequently froze in the street, but that was the operation of natural causes, for which the defendant was not responsible.
We think that the complaint failed to allege any facts that would justify a finding that the defendant had obstructed the street, or was responsible for its dangerous condition.
The demurrer was, therefore, properly sustained, and the judgment must be affirmed.
Van Brunt, P. J., Barrett, Rumset and Williams, JJ., concurred.
Judgment affirmed, with costs.