| N.Y. App. Div. | Dec 7, 1942
Resettled judgment in so far as it dismisses the cross complaint of appellant The City of Xew York against Joel Green and 248 Floyd Street Realty Corporation reversed on the law and the facts, with one bill of costs, and judgment directed on the law in favor of The City of Xew York against Joel Green and 248 Floyd Street Realty Corporation, with costs. The 248 Floyd Street Realty Corporation leased the premises to Joel Green upon a month to month basis for a public purpose and was thus responsible for the nuisance that existed at the last letting. (Kilmer v. White, 254 N.Y. 64" date_filed="1930-06-03" court="NY" case_name="Kilmer v. White">254 N. Y. 64, 69.) The jury must necessarily have found that the encroachment upon the sidewalk area existed at the time of the last monthly letting and that the owner failed to abate the nuisance. For this the owner as well as the tenant is primarily liable. (Trustees of Canandaigua v. Foster, 156 N.Y. 354" date_filed="1898-06-07" court="NY" case_name="Trustees of the Village of Canandaigua v. Foster">156 N. Y. 354; Zolezzi V. Bruce-Brown, 243 N.Y. 490" date_filed="1926-11-16" court="NY" case_name="Zolezzi v. Bruce-Brown">243 N. Y. 490.) Both tenant and owner were guilty of malfeasance in that they obstructed the sidewalk without any permit. The liability of the city was based upon its failure to inspect and hence it was guilty of passive negligence. It follows that it may recover over from those who actually created the condition. (Toth v. Kennedy & Smith, Inc., 259 A.D. 855" date_filed="1940-04-29" court="N.Y. App. Div." case_name="Toth v. Kennedy & Smith, Inc.">259 App. Div. 855; Doyle v. Union Railway Co., 276 N.Y. 453" date_filed="1938-01-11" court="NY" case_name="Doyle v. Union Railway Co.">276 N. Y. 453.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.