Jennings v. Van Schaick

• Decision Date: 28 February 1888
• Parties: JENNINGS v. VAN SCHAICK.
• Court: New York Supreme Court

108 N.Y. 530

15 N.E. 424

JENNINGS

v.VAN SCHAICK.

Supreme Court, New York County, New York.

February, 1888.

Appeal from a judgment of the New York court of common pleas affirming a judgment of that court entered upon the verdict of a jury in favor of the plaintiff and an order denying a motion for a new trial.

Catherine Jennings brought this action against Henry Van Schaick for personal injuries sustained by falling into a coal-hole in the sidewalk in front of an apartment house in the city of New York, owned by the defendant.

The accident occurred during the delivery of coal to Dannat, a tenant of an apartment, the cover of the coal-hole having been unfastened and removed for that purpose by Roberts, the janitor of the premises.

Upon the first trial, plaintiff had a verdict for $10,000 damages, but upon appeal the judgment and order denying a new trial were reversed upon the ground that the damages were excessive (Decision reported in 13 Daly, 7).

Upon the second trial plaintiff had a verdict for $4,000 damages, and defendant appealed.

The General Term affirmed the judgment, and order denying a motion for a new trial, holding that the coal-hole having been maintained for nearly eighteen years without any permission or license therefor, on the inner part of the sidewalk of a crowded thoroughfare, and left unprotected by any crib or curb while open, to the knowledge of an employee of defendant, the owner, who rented the nuisance with the premises, the latter must be considered as continuing responsible for the nuisance. And the court further held that the provisions of the city ordinances requiring inclosure of openings on the sidewalk by a box or a crib were not to be construed as implying that the box or crib should not be in place when the opening was in actual use (Decision reported in 13 Daly, 438).

From the judgment of the General Term defendant took this appeal.

A. H. Stoiber, for the defendant, appellant.

Jeroloman & Arrowsmith, for the plaintiff, respondent.

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 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 street it might not be observed in time to avoid a fall; but she swears no such sign of possible peril was present, and, though contradicted, we must take the verdict of the jury as settling the question of fact in her favor. Somebody, therefore, was responsible for the injury.

It does not appear that the defendant, who owned the premises, had ever obtained from the municipal authorities any formal license or permission to construct the opening in the sidewalk; but such authority was a reasonable inference from an acquiescense of eighteen years without objection from the city. Assuming, however, that authority for the construction had been granted, the duty of safe covering and of protection when open remained; and if not performed, the unguarded opening became at once a wrong and a nuisance. Where an owner builds a coal vault under or adjoining the sidewalk with an opening to the surface by the permission of the municipality, and constructs it in all respects safely and properly, and then rents the premises to a tenant who takes the entire possession and occupation, the landlord reserving no control, and the tenant in his use of the property carelessly leaves the coal-hole open, whereby some one is injured, it is the tenant and not the landlord who is liable; since the latter has neither created nor maintained a nuisance, nor been guilty of any negligence or wrong.

But that is not this case. The building was rented in flats or apartments. The owner remained in control to some extent, and hired and employed a janitor to take care of the premises. He controlled the halls and some portion of the basement, and especially the coal vaults, in one of which was stored the coal for the building, and in the other that for the tenants. The coal for the building was for the use of the janitor and the engineer. The cover to the side-walk-opening was held in its place and so made safe by a chain fastened underneath. When this coal was delivered the janitor took the ticket and unfastened the chain so that the cover could be removed. His employment by the tenants was to deliver the coal to their rooms. To open the coal chute and allow it to be received was his duty as janitor, under his employment by the owner. That duty he neglected to perform properly and permitted the cover to be removed without the least attention to the safety of those passing by. There was thus enough in the case to make the owner responsible for the injury. The evidence permitted an inference by the jury that the landlord controlled the use, and did not admit the inference involved in the requests to charge which were refused that the tenants employed the janitor to open the cover and see to the delivery. Roberts said his employment by Dannat, the tenant, was to deliver coal to his rooms, and the effort to make him say differently failed.

The exceptions relied upon by the appellant were mainly involved in two propositions of the defense the one that the action was not founded on a wrong, as charged by the court, and the other that the jury were at liberty to find from the evidence that the janitor was the servant of the tenant in the use and management of the coal-hole, and not of the defendant.

We have assumed that from long use and acquiescence the consent of the municipal authorities to the construction of the coal-vault and its aperture should be inferred, and so the structure was not, in and of itself, a nuisance. But the consent of the city is conditional upon certain modes of use, and if the opening is left unguarded it becomes at once a trap and a nuisance. No consent to leave it open and unprotected can be possibly claimed, and so the act is a positive wrong on the part of the person or individual leaving it open, and without warning to the public either by some one guarding it, or by a box or crib placed over it as required by the city ordinance. The court, therefore, did not err in saying that the action was founded upon a wrong, and in treating the open and unprotected coal-hole as a muisance.

Thereupon the question arose who was guilty of the wrong and responsible for the nuisance, and that ended in the inquiry who controlled the use of the coal-hole. The janitor controlled it beyond question. He occupied the basement and had the care of whatever about the house was for the common convenience of the tenants. If the cover on the sidewalk was so made that it could be opened by anybody from the outside maliciously or accidentally the construction was faulty. But that apparently was not the case, and the janitor himself scarcely denies that he loosened the chain and allowed it to be opened. He was the servant of the owner, put there to control and care for the premises. Until some evidence was given to change that relation the owner alone was responsible for the wrongful management of the coal-hole. We discover no such evidence. The janitor testified that the coal-hole in question here was ““used for the tenants,” that he was employed by some of the tenants to “deliver coal to” their rooms or apartments, and that answer being unsatisfactory was followed by a very leading question, viz.: “To see that it was delivered in the house?” Which the...