The complaint states a cause of action, and is. sufficient upon demurrer. It sufficiently appears thereby that the-accident complained of is attributable to defendant’s neglect. Conceding that the private passage-way into the defendant’s cellar, and which was used by him, and under his control, was within the limits, of the street, and that the duty of keeping the street in repair and safe for travel rested on the village, yet the defendant would also be-liable for his own tortious or negligent acts in maintaining the same in an unsafe condition, so as to be dangerous to persons travelling on the street, and using due care. Suit may be brought against both or either in such cases. Davenport v. Ruckman, 37 N. Y. 568, 574;. City of Boston v. Worthington, 10 Gray, 496; Burt v. City of Boston, 122 Mass. 223; Calder v. Smalley, 66 Iowa, 219, (23 N W. Rep. 638.)
Order affirmed.