Coon v. Froment

| N.Y. App. Div. | Jan 15, 1898

O’Brien, J.:

The general rule that pleadings are to be liberally construed, and that they are not obnoxious to demurrer where a cause of action or ' a defense can be proved under them, it is claimed, requires that, where a material allegation is in the- alternative, it shall be taken in its weaker sense. It is insisted that the language in the complaint, that the defendants “ caused- or permitted,” etc., is equivalent merely to an allegation that they “ permitted ” the wire to remain upon the sidewalk. It is true that the sidewalk is under the control of the city authorities, and-that the duty devolves upon them to remove obstruct tions therefrom; and the fact that the owner or lessee of premises abutting on the sidewalk has not removed such obstructions would not create a liability against such owner or lessee. (City of Rochester v. Campbell, 123 N.Y. 405" court="NY" date_filed="1890-12-02" href="https://app.midpage.ai/document/city-of-rochester-v--campbell-3608712?utm_source=webapp" opinion_id="3608712">123 N. Y. 405 ; Moore v. Gadsden, 87 id. 84.) In the latter case it is said: “ If by reason of obstruction, which it was the duty of the city or its officers to remove, it failed to do its office, the defendant cannot be made liable.” Liability, with reference to obstructions on the sidewalk, as against the owner or lessee, ■must be predicated upon some duty which the person sought to be charged owed (Matthews v. De Groff, 13 A.D. 356" court="N.Y. App. Div." date_filed="1897-01-15" href="https://app.midpage.ai/document/matthews-v-de-groff-5181739?utm_source=webapp" opinion_id="5181739">13 App. Div. 356), or upon some affirmative act which- results in. the creation of a nuisance. The distinction between actions for nuisance and those for negligence is clearly pointed out in Dickinson v. The Mayor (92 N. Y. 588) in the following language : “ The allegations in complaint tend to establish that the defendant neglected to perform a duty by not removing the ice and snow from the walk. . This was not an averment for keeping, maintaining and suffering a nuisance, but merely for negligence in not .removing the ice and snow. The complaint was not for a positive wrong committed by the defendant, but for .an injury sustained by reason of defendant’s negligence. The authorities establish a distinction between an action for wrong and an action for negligence.” (See, also, McConnell v. Bostelmann, 72 HGun, 238, where the cases are collated and discussed.)

There, might, therefore, be some strength in the defendants’ contention if the view.that the word .“ permit” means simply that the defendants suffered or allowed the wire to remain on the sidewalk were to prevail. While it is true that the verb “to permit” is in one sense synonymous with' “ to suffer,” “ to allow ”' or “ to let,” it also is equivalent to “ to give leave,” “ to license,” “ to warrant in writing,” “ to grant,” “ to empower,” “ to authorize,” “ to sanction; ” and in reading the allegations of the complaint as a whole it will be seen that what the plaintiff charges the defendants with is the creation or the giving permission to continue a nuisance. That this latter is the meaning which the plaintiff intended to give to the word “ permit ” is evident from the language preceding, i. e., that the defendants “ caused,” which is indicative of an intention to charge the defendants with some affirmative action in having either placed the wire on the sidewalk or given permission to have it so placed; and it would be giving too narrow and technical a meaning, and would abrogate the rules in reference to construing pleadings liberally in order to support them, were we to hold that by the use of the word “permit” the plaintiff intended only to charge the defendants with suffering an obstruction, which was placed there by somebody else, to remain on the sidewalk.

With respect to the separate demurrer of the agent, upon the view which we' take, that the complaint charges the creation or maintenance of a nuisance, not only the principal whose agent did the act complained of, but also the agent for his own wrongful act in that regard, would be liable.

We think, therefore, that -the demurrers were properly overruled and the judgment appealed from should be affirmed, with costs, with leave to withdraw demurrers and answer over on payment of costs.

. Yan Brunt, P. J., Baeeett, Rujisey and Patteeson, JJ., concurred.

Judgment affirmed, with costs, with leave to withdraw demurrers and answer over on payment of costs in this court and in the court below.