Ingraham, J.:
The defendant is the owner of an office building No. 1 Union Square, on the corner of Fourteenth street, city of Hew York. It seems that under the sidewalk in Fourteenth street there is an ash pit with an opening through the sidewalk covered with an iron grating about four feet from the curb line of Fourteenth street and twenty-three feet from the building, which when open is about three feet four inches long and two feet nine inches broad. This ash pit was built in the year 1892, and an alteration was made in the grating which *12covered it in the year 1895. This grating is parted in the middle parallel with the street, and when open one-half is upon each edge of the coal hole projecting above the coal hole something over sixteen inches. When the occupants of the building wished to remove the ashes from the cellar this grating was opened, and when open each half of the grating rests upon the side of the hole. In the year 1895 it was the custom to open this hole three times a week, in the morning about ten o’clock of Mondays, Wednesdays and Fridays. It appeared that on the afternoon of the 7th of November, 1895, one of the defendant’s employees opened this hole to throw some wooden boxes in the'basement; that while he was thus engaged the plaintiff, with two or three other men who were waiting in the street to be employed, was standing on the sidewalk in front of the building; that the plaintiff, seeing one of the other men coming towards him with a glove in his pocket, seized hold of the glove and pulled it out of the pocket; the owner of the glove, apparently in good nature, approached the plaintiff for the purpose of recovering possession of the glove, when the plaintiff stepped back a few steps, stumbled over the grating protecting this hole and fell in the hole, sustaining injuries, to recover for which this action was brought. At the time of this accident this ash pit was actually in use with the defendant’s employees at work there. The plaintiff was a truck driver entirely familiar with the locality, having worked for a Mr. Leonard, who had a store next to the defendant’s building,-for upwards of six years, and at the time of - the accident was upon the sidewalk caring for his horses and waiting for orders from the employer. The accident happened about three or four o’clock in the afternoon. The plaintiff testified that he had passed the hole about ten minutes before he fell through; that he had never seen that hole open before to his knowledge and did not see it open on that day before he fell, but he knew there was a hole there prior to the day that he fell in it. At the end of the plaintiff’s case, and again at the end of the whole case, counsel for the defendant moved to dismiss the complaint upon the ground that the plaintiff had not made out a cause of action and that the plaintiff was guilty of contributory negligence in stepping into a hole which he knew was in existence. This motion was denied, to which the defendant excepted. ■ The complaint is based entirely upon negli*13gence, charging the defendant with having carelessly and negligently maintained upon his premises an open ash pit or coal hole located upon the public highway, and that at the time of the accident the defendant carelessly and negligently left this coal hole open unguarded, without any protection to prevent persons from falling into the same. The cause of action resting entirely upon negligence, the court left the question of the defendant’s negligence and the freedom from contributory negligence to the jury, charging: “ If you find that the defendant did leave this coal hole or hole in the sidewalk in such a shape that in case any person walking along the sidewalk as people ordinarily do, and exercising ordinary care and caution, would be endangered by it, then that would be a negligent act.” There is no allegation in the complaint that this ash pit under the street was illegal or erected without the consent of the municipal authorities. There would be, therefore, a presumption from the length of time which it had existed, without any objection having been made by the city authorities, that their consent to its construction had been given. (Jorgensen v. Squires, 144 N.Y. 280" court="NY" date_filed="1895-01-15" href="https://app.midpage.ai/document/jorgensen-v--squires-3593567?utm_source=webapp" opinion_id="3593567">144 N. Y. 280; Babbage v. Powers, 130 id. 281.) Assuming it to have been lawfully constructed, the defendant was bound to properly guard and protect it, and any failure in this respect would be negligence which would entitle a person injured to recover (Downey v. Low, 22 A.D. 460" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/downey-v-low-5183127?utm_source=webapp" opinion_id="5183127">22 App. Div. 460), and the question, therefore, presented is whether there is any evidence to justify a finding by the jury that the defendant was guilty of negligence in the performance of this duty which he had assumed by the construction of the opening of the ash pit in the public street. The evidence is uncontradicted that at the time of this .accident the defendant’s employees were using this ash pit for a purpose entirely consistent with the purpose for which it had been constructed. His employees were at the opening and it was only open so far as necessary for its use. There is certainly nothing in the evidence that would justify a finding that the ash pit was left open when not in use, or left unguarded at any time, and there is no precaution suggested which, if adopted by the defendant, would have prevented the plaintiff from falling into the hole under the conditions that existed at the time. The plaintiff, who had worked for upwards of six years in the neighborhood, stated that he was well acquainted with the condition of this pit; knew that the hole was there, *14although he says that, at the time, he did not have notice that it was open. Hé was standing, however, within a few feet of it attending to his horses in the street and waiting for orders from his employer. There was nothing to prevent his seeing that the ash pit was open and in use and those in charge of it working there. It was bright daylight, in the middle of the afternoon and the place was perfectly safe to any one walking on the street or using it in an ordinary way, in the ordinary possession of his faculties. The plaintiff, thus standing within a few feet of this open ash pit, engaged in a scuffle with one of his friends in the street, suddenly backed up into the hole without looking where he' was backing, without taking any precaution to see that this hole, • with the existence of which he was familiar, was not open and in use. While realizing fully the obligation imposed' upon any one maintaining such an opening in the street, I cannot see that, if the maintenance of such an Opening was legal, the defendant failed to perform the obligation imposed upon him of properly protecting and guarding it so that those using the street should not be injured. The condition of the ash pit at the time of the injury was not one that to a person properly and carefully rising the street was dangerous. If a person walking along the street had fallen into this hole under the circumstances detailed and the condition existing at the time the plaintiff fell, the case would be not unlike that of Whalen v. Citizens' G. L. Co. (151 N.Y. 70" court="NY" date_filed="1896-12-01" href="https://app.midpage.ai/document/whalen-v--citizens-gas-light-co-3589708?utm_source=webapp" opinion_id="3589708">151 N. Y. 70) where it was held by the Court of Appeals that the defendant was not liable; and the fact that this plaintiff instead of using the street as ordinarily used was engaged there in a friendly scuffle with a fellow-workman and while so engaged backed into this coal hole, imposes no obligation upon the defendant if, under all the circumstances, this ash pit was so guarded as to be safe for any one using the street in an ordinary and proper manner. While, possibly, we could not say, as a matter of law, that this plaintiff was guilty of contributory negligence, it seems to me that the situation as it existed, the use to which the ash pit was being put at the time, and the conduct of the plaintiff that caused him to fall into the hole, conclusively establish that the accident was not caused by the neglect of the defendant to properly perform his duty in guarding and caring for this construction in the sidewalk and that he was not liable.
*15' It follows that the judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Patterson and Laughlin, JJ., concurred ; O’Brien and Hatch, JJ., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.