27 N.Y.S. 891 | New York City Court | 1894
The plaintiff’s intestate, a child of the age of six years, was drowned on September 19,1891, by falling into a cesspool upon vacant lots owned by the defendant at the corner of Atlantic avenue and Cleveland street in this city. Children were in the habit of playing on said premises, which were not fenced, and on the day stated the deceased was sailing a toy boat on the pool, and fell in and was drowned. There is no claim that the child was using the highway, or that the cesspool was adjoining the same;
The case of Bransom v. Labrot, 81 Ky. 638, cited by the appellant, is, in our opinion, in conflict with the decisions of the Court of Appeals of this state, and cannot, therefore, he followed. A case, on the facts, almost exactly like the one now under consideration arose in Pennsylvania. Gillespie v. McGowan, 100 Penn. St. 144. A child was jDlaying in the outskirts of Philadelphia, on vacant lots which were not fenced. There was a deep uncovered well on the property, eighty feet from the road and three hundred feet from a paved street. The child fell in the well and was drowned, and the Supreme Court held that there was no liability on the part of the owner of the lots.
Por the reasons stated the judgment appealed from must be affirmed, with costs.
Vau Wyck, J., concurs.
Judgment affirmed, with costs.