Harman v. City of New York — 148 A.D. 61

Majority

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Frances C. Harman, Respondent, v. The City of New York, Appellant.

First Department

December 1, 1911.

Headnote

Municipal corporations — negligence — injury by awning on public street—nuisance —when city not liable —failure to remove dangerous obstruction.

The city of New York cannot be held liable for injuries suffered by a pedestrian who stumbled over the brace of an awning placed in front of a theatre on the theory that the structure was a nuisance where the city did not create or maintain the alleged nuisance.

The liability of a city for a failure to remove obstructions from streets depends upon its negligence.

The city of New York has authority to authorize the maintenance of such an awning, and hence cannot be héld liable on the theory of authorization by acquiescence, even if mere acquiescence were otherwise sufflciént. It seems, that if such awning were dangerous to pedestrians using the sidewalk, the city might be held liable for negligence in failing to cause its removal. But the city cannot be charged with negligence where such awnings are in common use throughout the city and it is not shown that any prior accident had resulted therefrom.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of March, 1911, upon the verdict of a jury for

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$1,250, and also from an. order entered in said clerk’s office on the 31st day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Clarence L. Barber, for the appellant.

Edwin S. Merrill, for the respondent.

The plaintiff has recovered a verdict for injuries alleged to have been caused by stumbling over an awning brace in front of the Colonial Theatre, between Sixty-third and Sixty-fourth streets on Broadway, as she was about to enter the theatre. A photograph of the awning is in the record, and it appears to .have been the sort of awning to be seen in the city of Hew York in front of theatres, shops, hotels, churches and frequently in front of private residences. The complaint was framed on the theory both of nuisance and negligence, but during the trial the plaintiff elected to try the case on the theory of nuisance, and the case was submitted to the jury to find a verdict for the plaintiff in case they found that the accident happened as testified to by her; that the awning over the walk was in fact a nuisance, and that the city had notice of it, express or implied. It is unnecessary to determine whether the awning, if unauthorized, was a nuisance, 'for the city .had not created and did not maintain it. ' The liability of the city for failure to remove obstructions in the streets depends upon its negligence. ' It ■ is plain that the city could have authorized the maintenance of this structure (Greater N. Y. Charter [Laws of 1901, chap. 466], § 50, as amd. by Laws of 1905, chap. 629; Hoey v. Gilroy, 129 N. Y. 132 ), and it cannot be held liable on the theory of authorization by acquiescence, even if mere acquiescence were otherwise sufficient.

If the awning were dangerous to pedestrians using the sidewalk, the city might be held Hable for negligence in failing to cause its removal. (Hume v. Mayor, 14 N. Y. 264 .) Awnings Hice the one involved in this suit serve a convenient, and useful purpose. We know that they are in common use in Hew York city, and, so far as appears by this record, no accident has heretofore resulted therefrom. The. municipality is not obliged to

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remove every obstacle from the sidewalk, but only those from which danger may reasonably be apprehended. (Dubois v. City of Kingston, 102 N. Y. 219 .) We think that the plaintiff failed to establish liability on either theory.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

■ Judgment and order reversed, new trial ordered, costs to appellant to abide event.

Cases cited

Hoey v. Gilroy 129 N. Y. 132 N.Y. 1891-12-01 p. 62
Dubois v. City of Kingston 102 N. Y. 219 N.Y. 1886-04-13 p. 63