153 N.Y.S. 410 | N.Y. App. Div. | 1915
Lead Opinion
The plaintiff’s intestate, claiming to be the proprietor of a hotel and restaurant business conducted on premises at the southeasterly corner of Webster and Wendover avenues in the borough of The Bronx, New York, brought this action to recover damages caused by the obstruction of access to the premises through alleged unreasonable delay on the part of the
For a period of twelve years prior to the 6th day of March, 1901, the decedent had been engaged in the hotel business on Park avenue and on that day he moved to the premises in question, which were two blocks westerly therefrom. The appellant contends that it was not satisfactorily shown that the plaintiff’s intestate conducted the business; but I think that the evidence fairly shows that he did. It appears that he leased the premises from the Eichler Brewing Company and in the four-story building thereon conducted a restaurant, an hotel with eighteen rooms for guests and a bar, and also from 1904 a large banquet hall adjoining the property, but the liquor tax license was never issued in his name. Counsel for the plaintiff on the trial withdrew any claim for damages on account of any injury to the liquor business, and the award of damages was confined to the hotel and restaurant business. The claim that the decedent was not the proprietor is based on the facts that the bar, restaurant and hotel were conducted together, that the liquor tax certificates were issued to members of his family, who, it is claimed, thereby became interested in the entire business, and that his wife took charge of the room receipts as her own. I think the weight of the evidence supports the finding of the jury that the decedent was the lessee and proprietor.
By virtue of the authority conferred by its charter, the city prepared plans and specifications for the construction of the sewer or tunnel in question, which was to be constructed from a point at or near Webster avenue at its intersection with Wendover avenue to. the Harlem river at High Bridge. Wendover avenue was about 100 feet in width and ran nearly east and west. Webster avenue ran nearly north and south;
It does not appear that the sidewalk adjacent to the hotel, either on Wendover avenue or Webster avenue, was ever obstructed, but it was shown that for a time Wendover avenue at its intersection with Webster avenue was obstructed by materials dumped from the excavation north of the fence around the same and in constructing the sewer across Wendover avenue. It appears that Flanagan made some claim against the city which was settled. It is claimed in the brief for the city that the settlement was for the work done, but neither the nature of the claim nor the basis of the settlement is shown by the record. It also appears that the second contractor made claim against the city for $370,000, and that the city settled it for $100,000, which it was shown was less than the value of the work actually done.
Counsel for the city duly moved for a dismissal of the complaint at the close of the plaintiff’s case and at the close of all the evidence upon the grounds, among others, that no cause
The learned counsel for the city contend at the outset that
It appears by the special verdict, which is sustained by the evidence, that part of the delay for which the recovery has been had was due to the failure of the contractors to perform
I am of opinion, however, that the complaint should not be dismissed. A municipal corporation is not liable for its failure to make a municipal improvement; nor is it liable for consequential damages to the owners or occupants of property abutting on a street which it opens and obstructs in making a municipal improvement, for which it has legislative authority. (Dillon Mun. Corp. [5th ed.] § 1674; Uppington v. City of New York, supra.) Any unauthorized obstruction of a public street is a public nuisance, and a private nuisance also if special damages are caused thereby to the owners or occupants of abutting property. (Dillon Mun. Corp. [5th ed.] §§ 1169, 1170; Callanan v. Gilman, 107 N. Y. 360; Cohen v. Mayor, etc., 113 id. 532.) Ordinarily a municipal corporation is not liable for an error of judgment on the part of its officials or representatives in determining upon a plan for a public improvement (Atwater v. Trustees, etc., 124 N. Y. 602; Seifert v. City of Brooklyn, 101 id. 136; Rochester White Lead Co. v. City of Rochester, 3 id. 465; Urquhart v. City of Ogdensburgh, 97 id. 238; Uppington v. City of New York, supra); nor where the work is required to be performed by contract is it liable, I think, for an error of judgment in determining in advance the period within which the work should be performed. (See Atwater v. Trustees, etc., supra, 611; Seifert v. City of Brooklyn, supra.) It is, however, I think, the duty of a municipal corporation in exercising its legislative authority to make improvements requiring the obstruction of streets, to use reasonable care and diligence to the end that the street shall not be unnecessarily obstructed, and that necessary obstructions shall not be continued beyond the time reasonably required for making the improvement; and although the precise point has not been adjudicated within this jurisdiction, such a rule of liability has been repeatedly recognized in the opinions of our courts, and it has been so adjudicated elsewhere. (28 Cyc. 1079; Lefkovitz v. City of Chicago, 238 Ill. 23; Rochester White Lead Co. v. City of Rochester, supra ; Bates
It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented in part.
Since amd. by Laws of 1912, chap. 452.— [Rep.
Since amd. by Laws of 1910, chap. 554.— [Rep,
Dissenting Opinion
I concur with my brother Laughlin in the reversal of this judgment, but I think that the defendant was entitled to a
Of course, a very different question would be presented if the action was against contractors who had unnecessarily obstructed the street, established a nuisance, or unnecessarily injured abutting property, as in Bates v. Holbrook (171 N. Y. 460).
McLaughlin, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event. Order to be settled on notice.