278 A.D. 233 | N.Y. App. Div. | 1951
Defendant-appellant appeals from a judgment entered against it in a negligence action, and from an order denying its motion for a new trial. In the same action a verdict of no cause of action was returned in favor of the other defendant, the City of Albany. No appeal was taken from any judgment that may have been entered on that verdict.
The case arose when plaintiff was injured as she stepped into an excavated area in the sidewalk in front of appellant’s premises on South Pearl Street in the city of Albany, and her foot caught under the cap of a water shutoff valve. This valve had been placed there for the purposes of controlling the intake of water from a city water main into a sprinkling system installed for fire protection in appellant’s building.
Appellant had a contract with the Sano-Bubin Construction Company to remodel its building and install a sprinkler system. The contract for the installation of the sprinkler system was sublet to E. W. Tompkins Co., Inc. The latter made an application to the department of public works of the City of Albany for permission to open the street for the purpose of tapping the water main and connecting a pipe to the sprinkler system. The proof indicates that the main could only be tapped by city employees, but this was not true of the excavation work. However the subcontractor requested the city to do the excavation
Assuming plaintiff was entitled to recover for her injuries it seems clear on the foregoing facts, which were undisputed, that both defendants were liable. Nevertheless the jury exonerated the city. Apparently this result was arrived at by the jury through a misunderstanding of the “ special benefit rule ”. Primarily the duty to maintain the sidewalk in question in a reasonably safe condition rested upon the city, and this duty continued and survived any application of the special benefit rule to the appellant as an abutting owner so far as the plaintiff’s claim is concerned. It is true that an abutting owner, although ordinarily not liable for the maintenance of a sidewalk in front of his premises, may become liable if there is some feature in the construction of a sidewalk, not connected with the public use, which confers a special benefit on his property (Clifford v. Dam, 81 N. Y. 52; Trustees of Canandaigua v. Foster, 156 N. Y. 354).
Apparently the jury took this rule to mean that if the work here was for the special benefit of the appellant, and the latter was in any way negligent, that no liability rested against the city. This was an erroneous conception. The doctrine invoked confers no immunity upon a municipality against an injured pedestrian, although it may give rise to liability over against an abutting owner and in favor of the municipafity (Schrold v. City of New York, 273 App. Div. 872, affd. 298 N. Y. 738; Satta v. City of New York, 272 App. Div. 782). The rationale of these principles is that the wayfarer has the right to rely, if he so chooses, upon the primary liability of the municipality to maintain its sidewalks in a reasonably safe condition, or he may rely upon the liability of both if the abutting owner has the duty to maintain some part of the sidewalk constructed for his special benefit.
As the foregoing indicates the verdict in our opinion should have been against both defendants, but we are now powerless to correct the omission. No appeal was taken by the plaintiff from the judgment of no cause of action in favor of the city, and the appellant could not appeal from that judgment (Ward v. Iroquois Gas Corp., 258 N. Y. 124). So far as the appellant is concerned, however, its liability was manifest.
The judgment should be affirmed.
Heffernan, Brewster, Deyo and Bergan, JJ., concur.
Judgment affirmed, with costs.