Kelly v. Newman

62 How. Pr. 156 | New York Court of Common Pleas | 1881

Van Brunt, J.

— This is an action to recover damages against the defendant Newman and the Mayor, Aldermen and Commonalty.

The complaint alleges that- the defendant Newman is the occupant of No! 681 Sixth avenue, in the city of New York. That it was the duty of both defendants to maintain the'sidewalk in front of said premises in a safe condition for passersby and free from all incumbrances of ice and snow, and that nevertheless the defendants, neglecting their duty, permitted ice and snow to accumulate upon said sidewalk.

The complaint then further alleges that defendants, "in violation of their duty, permitted a cellar beneath said premises, which extended and projected beyond the line of the street, to remain open, exposed, unprotected and unsecured, and that on the 10th of February, 1881, the plaintiff, while lawfully passing along the said sidewalk, without any fault or negligence on her part, slipped and fell upon said ice and snow and was thrown down the said cellar, whereby she was greatly injured, viz., to the "amount of $10,000. The defendant Mewman demurs upon the ground of improper joinder of causes of action.

If the complaint contains two causes of ■ action, the counsel for the plaintiff concedes that the demurrer is well taken.

If any liability exists or could exist against the defendant Mewman because of the accumulations of snow and ice upon the sidewalk, certainly such a cause of action is set out against him in the complaint. It is true that it is claimed now by the counsel for the plaintiff that but one cause of action is set out in the complaint, viz., that for injuries sustained by her falling down the cellar; but this view an examination of the complaint does not sustain, as if the allegations in the complaint are true, viz., that there was a violation of duty which he owed the passers-by upon the part of Mewman, in allowing ice and snow to accumulate upon the sidewalk in front of his premises — two causes of action are set forth in the complaint; and the drawers of the pleading undoubtedly then supposed that the defendant Mewman did owe such duty, and that he became liable as well as the Mayor, &c., for its neglect. Such being the nature of the pleading, and there being no liability, as matter of law, upon the part of Mew-man because of the accumulation of snow and ice, two causes of action are improperly united; and it is no answer to the demurrer to say that such causes of action are not separately stated.

Demurrer sustained; plaintiff to have leave to amend upon payment of costs of demurrer.