101 N.Y.S. 616 | N.Y. App. Div. | 1906
Lead Opinion
The defendant Hellinger is the owner of the premises Ho. 802 Third avenue in the city of New York, The defendant Davega.
The defendant Hellinger in his.answer alleged that the injuries complained of were caused wholly or in part by reason, of Opppr’s own negligence, or by reason of the negligence of some person over, whom said defendant had no control, and not by ‘ reason of any negligence on the part of said defendant, his agents,, servants or employees. He further alleged, upon an amendment allowed at the trial, that the cfefendant Davega was in the occupation, possession and enjoyment of" the, store and basement referred to in the complaint; that the cellarway was appurtenant thereto, and that said Davega was responsible for the care and conduct of the said portion of the premises, and not this defendant, and that said cellar-way and its appurtenances were duly maintained and used by virtue of a license,-right or privilege duly obtained from pr conferred by the municipal authorities of the city-of New York,¡and were well built and free from dangers, and in good and safe condition.
The defendant Davega in his answer alleged that the injuries sustained by the deceased were due to his own negligence, and not the result of the negligence of this, defendant or any of his agents* servants or employees. He did not amend his answer to set up the license from the city authorities as did Hellinger. j
While the complaint is susceptible of interpretation as alleging a
The accident occurred about half-past- ten o’clock in the morning of a bright clear day. An employee of the tenant Davega was on the cellar' steps, in the act of coining up, when the deceased fell into the cellar, striking the employee Schwartz, and then falling upon the stone steps, receiving injuries from which he died. The testimony as to the accident itself is conflicting. Plaintiff claims that the deceased and his young stepson were walking up the street when they saw two boys approaching them, between whom was a bulldog held by a strap in the hands of each of the boys; that to avoid the' bulldog the deceased side-stepped ” towards the store, tripped over the iron doors, then in the position outlined as above, and fell into the cellar. The defendants contend that there was no bulldog . upon the street; that the deceased was walking in a zig-zag fashion up the street and fell sideways and straight into the cellar, and that he did not trip over the doors at all.
As the testimony in regard to the method of falling was conflicting, it was a pure question of fact for the jury. The jury found a verdict in favor of the plaintiff and against both of the defendants.'
So far as the defendant Hellinger, the owner of the building, is
The deceased did not fall through the doors when they were closed. If they had been closed the accident would not have happened. The control of the doors was lodged exclusively- in the, defendant Davega. The cellar stairs were in actual use by an employee of-the tenant, who was proceeding up the stairs at the time of the accident. Tó enable him to get up the stairs into the street the doors had to be opened. Over the movements of this employee and the subsequent opening of the'doors the owner, of the building liad no control.
The,learned trial court charged.the following propositions to.the jury, without exception : “ The absence of bar or chain across the front of the cellar doors- and the absence of any railing at their sides did not create any liability .on the part of the defendant Tlellinger in this ease.” The basis for this charge was undoubtedly the provisions of section 342 of the municipal ordinances, which provides that “Every entrance or flight of steps projecting beyond the liue of the street and descending into any cellar or basement story of any house or other building where such entrance or flight of steps shall not be covered, shall be inclosed with a railing on each side, permanently put up, from three to three and a-half; feet high? with'
. This court held in Schroeck v. Reiss (46 App. Div. 502)': ££ That those provisions of the law only apply to entrances to flights of steps which were not covered. The steps in question were covered by doors which were sufficient and proper for the purpose. The ordinance evidently refers to open flights of steps, which it requires to be protected in the. manner there indicated: It* could never have been intended that when the word ‘ covered ’ is used it was intended to refer to only those cases where the entrance or flight of steps was covered by a permanent covering, because the construction under those circumstances would be absolutely useless. The ordinance was intended to apply to flights of steps which could be used, and when entrances and flights of steps which were covered were exempted, it is evident that the provision meant to exempt those flights of steps which were covered by movable coverings, by the raising of which the steps might be made of service in connection with the basement to which they led.” ■
The court further charged: £< The cellarway in this case, when closed, was not a nuisance and the defendant Hellinger had no con
These propositions have the support of the following cases : Jennings v. Van Schaick (108 N. Y. 530); Babbage v. Powers (130 id. 281); Jorgensen v. Squires (144 id. 280); Schroeck v. Reiss (supra); Brady v. Shepard (42 App. Div. 24); Schubkegel v. Butler (76 id. 10).
It, therefore, appearing that this cellarway having been created by the permission.of the municipal authorities and as built was provided with doors which completely covered and protected it, "it was not a nuisance so far as. the landlord was concerned. '
As stated in Babbage v. Powers (supra) consent of the municipál authorities and a compliance with the provisions as -to the method of construction — in tins case not extending five feet beyond the building line and being covered with doors:—relieved the owner from the imputation of trespassing in doing the act consented to ■ and place him in the position of one liable for negligence only. That negligence would' be the leaving of the celiarway open and unguarded. As the landlord had no control of the; cellarway the act of. the tenant by his employee, who was actually using the cellar steps and in order to do so had the doors open, could not be imputed to the owner, - •
We, .therefore, think that the motion to dismiss as¡ to the defendant Hellinger should have been granted. The judgment and order ' should, therefore, be reversed and a new trial ordered,'with costs to the appellant to abide the event.
McLaughlin, Houghton and Scott, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Clarke in-the reversal of this judgment, The case was tried throughout upon the assuiinption that the
The question of plaintiff's contributory negligence, therefore, was not considered important by the court, because it was assumed that the action was based upon the.maintenance of a nuisance. To justify a verdict against either defendant, therefore, it was necessary to prove that this stairway, covered as it was with an iron covering, was an unauthorized use of the public street.
The length of time the cellar stairway, covered as it was, had been in use justified the presumption that it was under a license by the municipal authorities. It was within the area line, and was, therefore, not a violation, of section 341 of the revised ordinances, which seems to be the only ordinance to which reference was made in the testimony.
There is, therefore, no evidence to justify a finding that any nuisance was maintained upon the premises. If this cellar stairway was negligently left unguarded, a cause of action would undoubtedly arise in favor of one injured; but that would only be against the person responsible for such negligence. Upon the theory under which the case was tried this question of negligence .was not presented ; but upon no theory could the landlord be liable for a negligent use of this cellar stairway by the tenant.
In no aspect of the case, therefore, can it be said that there was any cause of action proved against the landlord or the tenant, and I think that the judgment against both defendants should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.