232 A.D. 351 | N.Y. App. Div. | 1931
The action is to recover damages for personal injuries. The fronts of two stores, or a double store, were to be
The appellant claims that this action cannot be maintained because no notice of the defective condition, as required by section 244 of the Second Class Cities Law, was given to the city; and urges that the. city must have had notice of the specific defect which caused the collapse of the false front before this action could be maintained; that notice of the obstruction, without notice of the specific defect which caused the fall, is insufficient. We think this claim is without merit. Section 244 provides that no civil action shall be maintained against a city for damages for injuries
The only other point raised by the defendant city is that the evidence fails to establish any actionable negligence. The duty rested upon the city to keep this sidewalk in a condition reasonably safe for those rightfully traveling or passing thereon. This was an active duty, requiring vigilance and diligence. (Klepper v. Seymour House Corp., 246 N. Y. 85, 95.) As between the city and the contractor or builder the duty to erect this false front rested primarily upon the builder; but, as between this plaintiff and the city, the duty rested upon the city to see that the sidewalk was reasonably safe. (Magee v. City of Troy, 48 Hun, 383; affd., 119 N. Y. 640; Metzroth v. City of New York, supra.) The defect which caused this front to fall was patent and observable to any competent person. It cannot be disputed that the deputy commissioner of public works was a competent person, and more competent than one of the public, to realize that, when such a construction is anchored or tied solely by eight penny nails driven into brittle mortar, a dangerous condition exists which should be corrected. It is common knowledge that, when one attempts to drive a nail into a brick or set mortar, something must yield. If the nail penetrates, the brick or mortar breaks; these will not yield space and remain firm as will wood. A passer-by saw the false front swaying and heard it creaking. The inclosure was about five feet from the front of the building; at the top the space between the false front and the real front was entirely open. The construction was plainly insecure and dangerous as against even an ordinary wind, or against any moderate force. It fell within two or three days after it Was constructed. We think it was a question of fact for the jury, under the conditions described in the evidence, to decide whether or not the defendant was guilty of negligence in allowing this condition to exist. The fall of the structure is
The judgment and order should be affirmed, with costs.
All concur.
Judgment and order affirmed, with costs.