Mansfield v. City of New York

This action was brought to recover damages for personal injuries. The complaint was dismissed at the close of plaintiff’s case, and she has appealed.

The evidence offered by her tended to show, and would have justified the jury in finding, that on the 12th of September, 1903, between 9 and 10 o’clock in the morning, the plaintiff, while standing’ on the sidewalk in front of a building situate at the northwest corner of Houston and Varick streets in the city of New York, was injured by a wooden shed or awning, which extended from this building to the outer edge of the sidewalk falling upon her; that the awning, which was covered with tin, was supported by four wooden posts set in the sidewalk at the edge of the curbstone, two fronting on Houston and two on Varick streets, and was secured to the building by nails driven

The plaintiff endeavored to prove that some six or seven years prior to the accident the awning had been inspected by an inspector of the bureau of incumbrances, and by him pronounced in a “very poor condition.” This proof was objected to by defendant, and the objection sustained, upon the ground that showing the condition seven years before the accident was too remote. The complaint having been dismissed at the close of plaintiff’s case, she is entitled to the most favorable inferences to be fairly and legitimately drawn from the evidence. Higgins v. Eagleton, 155 N. Y. 466 , 50 N. E. 287 ; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66 , 60 N. E. 282 . The plaintiff’s contention is that the awning was an unlawful encroachment upon the public street, obviously dangerous to travelers, and a nuisance, which it was the duty of the city to remove; while defendant’s contention, as I understand it, is that the awning was not a nuisance, but at most a defect in the street, for which the city could only be made liable after actual or constructive notice. It seems to me it is a matter of little or no importance, so far as the present appeal is concerned, which contention be adopted as the correct one, because in either view the court erred in dismissing the complaint.

First. Tlie structure may be regarded as a nuisance. A portion of it was placed in or so near the traveled part of the street that it was knocked down by a passing truck. This was an improper use of the street, and, if the city authorized it, it was itself maintaining a nuisance so long as the obstruction continued, and, if it did not it was permitting the nuisance because it had existed so long it was bound to take notice of it. Cohen v. Mayor, 113 N. Y. 532 , 21 N. E. 700 , 4 L. R. A. 406 , 10 Am. St. Rep. 506 . If it be true, as contended by counsel for the defendant that a presumption prevails in view of the length of time the awning had existed, that it was constructed under lawful authority, this does not aid the defendant. The presumption in that event is, not that the owner acquired any right to the use of the street, but that from such use the consent of the city was given. The city had no power to grant to an individual any right in the street which would interfere in any degree with its safe use by the public." The right of the public to the use of the street is absolute, and paramount to any other. Deshong v. City of New York, 176 N. Y. 475 , 68 N. E. 880 ; Ackerman v. True, 175 N. Y. 353 , 67 N. E. 629 . This structure, or a part of it, did interfere with the use of the street by the. public, which is conclusively established by the collision which occurred, and which caused or contributed to its collapse. The collapse,of the structure injured the

Second. If defendant’s contention be correct, the court also erred in dismissing the complaint. As already said, the city was bound to keep the streets, including the sidewalks, in such repair that a person lawfully using them might do so with safety. This awning covered the entire sidewalk in front of the building. It was constructed some 16 or 17 years prior to the time plaintiff was injured, and since that time substantially no repairs had been put upon it, except to replace the post broken the year before, and the post which broke on the day plaintiff was injured, or some part of it, was so far decayed that it would crumble when picked up. Under such facts the jury would have been justified in finding that the city had not performed its duty, in that it had failed to make an inspection of the condition of the post; that, had it done so, it would have discovered the defect, and had such post replaced by a stronger and more substantial one, and one which would not give way by a light truck colliding with it. This view is sustained by Hume v. Mayor, 74 N. Y. 264 . There plaintiff was injured by the fall of a wooden awning, as here, and it was held that such awning, if insecurely supported, so as to be dangerous to persons using the street, was a defect in the street which the city was bound to repair, and if the city had notice of the danger, or it had existed so long that notice might be inferred, then the city was liable for damages resulting from such defect. In the present case, if the city did not have actual notice of the defective condition of this structure, it had constructive notice, in view of the time which it had existed.

I am also of the opinion that the court erred in excluding evidence tending to show that the awning in question had been inspected by an inspector of the incumbrances bureau some seven years prior to the accident, and by him pronounced in an unsafe condition. Had the plaintiff been permitted to prove this fact, it would have established, there being no evidence to the contrary, that the awning at the time in question was not only out of repair, but that the city had notice of it. Having shown the awning out of repair, then the burden was

It follows that the judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.