43 N.Y.S. 237 | N.Y. App. Div. | 1897
This action was brought to recover damages for personal injuries. The plaintiff, while walking on the sidewalk in front of the premises No. 348 West Twenty-second street, in the city of Hew York, fell through a coal hole or chute in front of said premises and sustained serious injuries. This coal hole or chute was maintained as an
It is at once apparent from the structure of the complaint, and from what transpired at the trial, that there can be no recovery in this action by the plaintiff, unless negligence on the part of the defendant is shown. There is no cause of action alleged in the complaint founded upon the construction or maintenance of a nuisance in a public street. The distinction between nuisance and negligence in actions for damages for personal injuries is marked and has been defined. What that distinction is, is sufficiently pointed out by the Court of Appeals in the case of Dickinson v. The Mayor, etc., of City of N. Y. (92 N. Y. 584), and in this court in McConnell v. Bostelmann (72 Hun, 238). There being no allegation in this complaint
But it is urged on the part of the defendant that the nonsuit was properly granted, because, at the time the accident occurred, the property was in the actual possession of a tenant, and that not only was the landlord under no obligation to make repairs, but that there was an express stipulation in the lease to Mrs. Prendergast that she should make all repairs in or about the premises, which would include repairs to the cover of the coal hole. It seems to be the rule of law upon this subject that where the premises are demised to a tenant, who covenants to make repairs, the liability in a case of this character would not fall upon the landlord. (Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245, an action for negligence.) (Wolf v. Kilpatrick, 101 N. Y. 146; Ahern v. Steele, 115 id. 203, actions proceeding upon the theory of a nuisance arising from premises or appurtenances to premises being out of repair.)
Assuming, for the purpose of this action, that the general rule of law is as contended for by the respondent, yet there is an exception to that rule, which is applicable here, and that is that the owner or
We think, therefore, that the court below was wrong in rejecting the testimony offered to show the condition of the cover at the various times referred to in the question to which the court would not permit an answer, and above referred to. We think the evidence was competent and should have been admitted, and for these reasons the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.