| N.Y. Sup. Ct. | Jun 8, 1909
The complaint avers in substance that the dedefendant Schween is the owner of certain premises in the city of New York, of which the defendant Levin is the lessee, and that the premises, at the time of the lease to Levin, as well as at the time of the accident in question, “contained a certain areaway or open space, situated in the rear portion thereof, which areaway or open space was wholly unguarded and unprotected.” It is further alleged that the areaway abuts upon the adjoining premises, and that on a day named the plaintiff, while lawfully upon the adjoining premises, fell into the areaway and was injured, without fault on her part.
The defendant Schween demurs to the complaint on the ground that it does not state a cause of action against him, and the demurrer is in my judgment well taken. An owner of real property owes the duty to the adjoining proprietor not to take away his lateral support, and he also owes the duty to such persons as he may invite upon his premises, either by tacit or by express invitation, to have them in a reasonably safe condition. He also owes a duty to the public not to render the streets or sidewalks dangerous to travelers. Dygert v. Schenck, 23 Wend. 446, 35 Am. Dec. 575; Congreve v. Smith, 18 N.Y. 79" date_filed="1858-09-05" court="NY" case_name="Congreve v. . Smith">18 N. Y. 79. But I know of no rule of the common law nor of any statute which imposes any duty upon him, towards strangers on adjoining premises, to guard an excavation on his own land not adjacent to the highway; and no ordinance of the municipality, if there be any, has been pleaded.
The demurrer must be sustained, with leave to amend upon payment of costs within 20 days after service of the interlocutory judgment.