101 N.Y. 146 | NY | 1886
The defendants who appeal were shown to be the owners of premises which had vaults for the storage of coal extending under the sidewalk. The plaintiff was injured by a defect in the stone supporting the cover of the opening which arose while such premises were in the occupation of one Macpherson and others who were tenants having entire control of the premises. The defect was not one of original construction, but occurred through the act and interference of third persons engaged in building the elevated railway, and who broke the stone supporting the iron cover so that it turned under plaintiff's weight and occasioned the injury. We do not know at what time, prior to the accident, the defendants became owners. The building and the vault were constructed by Macpherson, and if, at the time, the appellants were owners, and responsible for the work actually done, it is still established that the vaults were built under a permit from the city and in accordance with that license. The coal-hole and its cover were safely and properly constructed, and in the usual and permitted manner. The case is not, therefore, within the doctrine of Clifford v. Dam (
It may be that the condition of the coal-hole in the sidewalk became a nuisance, while Macpherson was in possession, and after the stone was broken. (Swords v. Edgar,
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.