232 A.D. 359 | N.Y. App. Div. | 1931
A nonsuit in each action has been granted at the close of the plaintiff’s case. The plaintiff is entitled to the most favorable inferences that may be drawn from the testimony. The proof shows, or so the jury might have found, that the unassembled parts of a new furnace, consisting of a base weighing 125 pounds, a fire pot weighing about 350 pounds, three boiler sections weighing about 125 pounds each and a box, were piled on the sidewalk in a residential section of the city of Albany and left there by the
Every one who creates a nuisance or participates in the creation or maintenance thereof is liable for it. (Uggla v. Brokaw, 117 App. Div. 586, 595; McNulty v. Ludwig & Co., 153 id. 206, 215; Sullivan v. McManus, 19 id. 167.) We think it was a question of fact for the jury as to whether the placing of these materials on the sidewalk in this manner by the defendant’s truckmen constituted a nuisance. (Congreve v. Smith, 18 N. Y. 79; Cosgrove v. Ogden, 49 id. 255; Kunz v. City of Troy, 104 id. 344; Sullivan v. McManus, supra; McCloskey v. Buckley, 223 N. Y. 187; Murphy v. Leggett, 164 id. 121; Lyman v. Village of Potsdam, 228 id. 398; Rehberg v. Mayor, etc., 91 id. 137; McFarlane v. City of Niagara Falls, 247 id. 340.)
The judgments should be reversed and a new trial granted, with costs in one action to the plaintiffs to abide the event.
All concur.
Judgments reversed on the law and new trial granted, with costs in one action to the plaintiff to abide the event.