Kleinberg v. Schween

The defendant John Schween appeals from an order ■denying his motion for a judgment upon the pleadings dismissing the •complaint as to him. The complaint shows that the appellant, being the owner of a lot of land in the city of New York, erected thereon a Louse, and constructed in the rear of said house, and adjacent thereto, •on his own lot, an opening or areaway about 12 feet deep, 25 feet long, and 3 feet wide. This opening or areaway extended to and .abutted upon an adjoining lot, which belonged to another owner. Aft•er the building and areaway had been thus constructed the appellant leased the premises and building to one Samuel Levin, who entered into possession thereof, and was so in the possession when the plain-, tiff suffered the injury for which he sues. The plaintiff, being lawfully upon the adjoining premises, in the nighttime, fell into the area-way, and suffered certain injuries.

It is alleged that the appellant, while in possession of the premises prior to the lease to Levin, and both the appellant and said Levin since the lease, have failed and omitted to maintain a guard or rail to protect said area, and to prevent persons upon the adjoining property from falling into it, and have also failed and omitted to put proper lights, warnings, and safeguards to warn persons lawfully upon the adjoining premises of the existence of said area or opening. It is not alleged that the adjoining lot, from which plaintiff fell, was a highway or a public place, or an alleyway or other place generally used for the purpose of passing, or to which the public were in any way invited; nor is it alleged that the lateral support of the adjoining lot was in any way interfered with. .Although the complaint freely •characterizes appellant’s areaway as a trap and a nuisance, the facts stated do not justify the conclusion that it was either, or anything •else than a perfectly lawful excavation, which appellant was entitled to make and maintain upon his own land.

Nor does the complaint present the case of the maintenance by the owner upon his own land of a structure which by its operation or its fall causes injury to a person upon adjoining land. The plaintiff in the present case was in perfect safety so long as he remained upon the adjoining land. It was only when he crossed the boundary line between that land and plaintiff’s land that he fell into danger. Doubtless such crossing was inadvertent. But the owner of land is not bound by the common law to fence his land, or in any way mark the boundaries of his possession (Beck v. Carter, supra) ; nor is he under any obligation to make his land safe, or to keep it in any particular condition for the benefit of trespassers, intruders, mere volunteers, or bare licensees, coming upon it without his invitation, express or implied. Birch v. City of N. Y., 190 N. Y. 397 -403, 83 N. E. 51 , 18 L. R. A. (N. S.) 595 . In no view of the facts as set forth in the complaint did the appellant owe plaintiff any duty to fence or guard the areaway. Consequently plaintiff cannot recover a judgment for damages.

The motion should have been granted, and the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur, except EAUGHEIN, J., who dissents.