Majority
p. 698John Morris, App’lt, v. William H. Barrisford, Resp’t. (New York Common Pleas, General Term, Filed June 4, 1894.)
Headnote
•1. Nuisance—Insecure structure.The negligently maintaining in proximity to a street, any structure in so insecure a condition as to he liable to fall and injure pedestrians on the sidewalk, is a public nuisance, for which an individual sustaining special damage may have his action.
2. Same—License.
A municipal license of the structure is no license for it in a decayed and dangerous condition.
Appeal from judgment on dismissal of the complaint at the conclusion of plaintiff’s case. Action for personal injury from the fall of an awning attached to defendant’s premises and projecting over the sidewalk, along which plaintiff ’ was passing. The court compelled the plaintiff to elect between a cause of action for negligence and a cause of action for nuisance.
Constant & Coghill (L. A. Gould, of counsel), for app’lt; Knevalls & Perry (James W. Perry, of counsel), for resp’t.
It is impossible- to construe the complaint otherwise than as asserting a right of recovery for injury from a nuisance. The imputation of negligence in the maintenance of the awning, is ineffectual to alter the nature of the action ; for negli-, gence may be an indispensable element in the constitution of the nuisance. People v. Sands, 1 Johns. 78 : Simmons v. Everson, 124 N. Y. 319 ; 36 St. Rep. 265 ; Campbell v. U. S. F. Co., 73 Hun, 576 ; 56 St. Rep. 265 . There was, therefore, no alternative of claims between which the,plaintiff was compellable to elect; but, as he chose to stand on the ground of nuisance, the cause of action propounded by the complaint, the ruling of the learned trial judge was of no prejudice to him.
p. 699
According to the plaintiff the benefit of every favorable inference from the evidence, McNally v. Phoenix Ins. Co., 137 N. Y. 389 ; 50 St. Rep. 680 , and his right of recovery is clear and incontestable. The awning was maintained by the defendant; was suspended over a public highway; was in an insecure condition and so a menace to pedestrians on the sidewalk; it fell from its own infirmity, and inflicted the wound on the plaintiff. These facts the jury might have collected from the evidence; and in combination they constitute an unimpeachable cause of action for injury from a nuisance. Vincett v. Cook, 4 Hun, 318 ; Simmons v. Everson, 124 N. Y. 319 ; 36 St. Rep. 265 ; Bohan v. Port Jervis G. L. Co., 122 N. Y. 18 , 26; 33 St. Rep. 246 ; Walsh v. Mead, 8 Hun, 387 ; McConnell v. Bostelmann, 72 Hun, 238 ; 55 St. Rep. 439 ; Salisbury v. Herschenroeder, 106 Mass. 458 ; Ahern v. Steele, 115 N. Y. 203 , 209; 26 St Rep. 295 ; Irvine v. Wood, 51 N. Y. 224 , 228. But, argues the appellant, lie had -a license frem the city to maintain the awning, and, hence, it was not a nuisance. The awning simply, no; but its dilapidated and unsafe condition was the nuisance; and for that the defendant neither had nor could have a municipal license. Irvine v. Wood, 51 N. Y. 224 , 228. Again, the appellant contends that the city only is responsible for the condition of its streets, City of Rochester v. Campbell, 123 N. Y. 405 ; 34 St. Rep. 77 ; but, the awning was upon defendant’s premises, although the peril to the public was from its projecting over the highway. McConnell v. Bostelmann, supra. Still further, appellant insists that notice of the nuisance should have been brought home to him; but, if that were necessary, the evidence was ample to justify the conclusion that he had information of the decay of the awning. Hay, more; that he himself maintained it in its dangerous condition, is an obvious inference from the first paragraph of his answer, in connection with the undenied allegation of the complaint. We see no escape from a reversal of the judgment.
Judgment reversed and a new trial ordered; costs to abide the event
Bookstayer, P. J. and Bischoff, J., concur.
Cases cited
- People v. Sands 1 Johns. 78 p. 698
- Simmons v. Everson 124 N. Y. 319 p. 698, p. 699
- McNally v. Phœnix Insurance 137 N. Y. 389 p. 699
- Bohan v. Port Jervis Gaslight Co. 122 N. Y. 18 at 26 p. 699
- Ahern v. Steele 115 N. Y. 203 at 209 p. 699
- Irvine v. Wood 51 N. Y. 224 at 228 p. 699
- City of Rochester v. Campbell 123 N. Y. 405 p. 699