108 N.Y. 530, Jennings v. Van Schaick

Citation:108 N.Y. 530
Party Name:CATHARINE JENNINGS, Respondent, v. HENRY VAN SCHAICK, Appellant.
Case Date:February 28, 1888
Court:New York Court of Appeals
 
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Page 530

108 N.Y. 530

CATHARINE JENNINGS, Respondent,

v.

HENRY VAN SCHAICK, Appellant.

New York Court of Appeal

February 28, 1888

Submitted February 8, 1888.

Page 531

COUNSEL

A. H. Stoiber for appellant. A distinction must be made in favor of the landlord when a coal-vault or hole is perfect in construction, and the accident arises from no defect in its condition, but from and during the use of the same by a tenant. ( Swords v. Edgar, 59 N.Y. 28; Rich v. Basterfield, 4 M. G. & S. 783; Todd v. Flight, 9 C. B. [ N. S.] 377; Edwards v. N.Y. C. & H. R. R. R., 98 N.Y. 245; Wolf v. Kilpatrick, 101 id. 146; Owing v. Jones, 9 Md. 108; Staple v. Spring, 10 Mass. 72; Waggoner v. Jermaine, 3 Den. 306; Fish v. Dodge, 4 id. 311; House v. Metcalf, 27 Conn. 532; Smith v. Elliot, 9 Barb. 345.)

Jeroloman & Arrowsmith for respondent. The defendant, as the owner of the premises, is liable to the plaintiff for the injuries she has sustained, having maintained and continued the coal-hole as appurtenant to his premises; altering it from time to time to suit himself. ( McGuire v. Spence, 91 N.Y. 305; Irvine v. Wood, 51 id. 224; Swords v. Edgar, 59 id. 34; Clifford v. Dam, 81 id. 56; Congreve v. Smith, 18 id. 79; Anderson v. Dicke, 26 How. Pr. 105.) If there was any justification for the defendant's opening the coal-hole, in the crowded street, on the afternoon of October 2, 1882, it was incumbent upon the defendant to allege it as well as prove it. ( McGuire v. Spence, 91 N.Y. 303, 305, 306; Driscoll v. Mayor, etc., 11 Hun 101.)

FINCH, J.

The plaintiff fell into an open coal-hole left uncovered and unguarded in a crowded city street. She had a right to assume the safety of the sidewalk, and so was not called upon to give attention to her steps, until in some manner warned of danger. Undoubtedly she knew that vaults and coal-chutes were common under and adjoining the sidewalks, and that through the ordinary openings coal was deposited in

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such vaults. But she had a right to assume that they were securely covered, or if left open were guarded by some one to give warning, or by the crib or box prescribed by the city ordinance. Neither protection was provided in the present case. It was said that loose coal lay around the opening, and its presence should have warned the plaintiff of danger. In a crowded...

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