Jorgensen v. Squires

Citation144 N.Y. 280,39 N.E. 373
PartiesJORGENSEN v. SQUIRES et al.
Decision Date15 January 1895
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, First department.

Action by Angel K. Jorgensen against Flavius S. Squires and others. From an order of the general term (21 N. Y. Supp. 383) reversing a judgment for plaintiff, and ordering a new trial, plaintiff appeals. Affirmed.

E. Countryman, for appellant.

Douglas A. Levien and Robert A. Johnston, for respondents.

ANDREWS, C. J.

The jury found, on conflicting evidence, that the plaintiff fell into a cellar way in front of the premises on Third avenue, in the city of New York, owned by the corporation defendant, and occupied by the other defendants as lessees. The cellar way was projected into the sidewalk a distance of five feet from the building line, and the opening was covered with wooden doors. The plaintiff testified that she was standing on these doors, looking into a show window, when they fell, and she fell with them into the opening below, and was bruised and otherwise injured. The learned trial judge took from the jury the question whether the cellar way was improperly constructed, or improperly and carelessly maintained, and charged them that if the accident happened the defendants were liable, irrespective of negligence, for any injuries sustained by the plaintiff, on the ground that the cellar way was an unlawful structure, and a public nuisance, it having been constructed in the public street without authority, and he submitted to the jury two questions only: The question whether there was such an occurrence as that claimed by the plaintiff; and, second, the amount of damages. The plaintiff, in her complaint, alleged that the defendants unlawfully maintained the cellar way, and that it extended more than five feet from the street line into the sidewalk, and was insecurely covered, and constituted a nuisance. The answer denied these allegations. The question whether the cellar way was an unlawful structure was litigated on the trial; the plaintiff maintaining that it was constructed without legislative or other authority, and the defendants insisting that it was built and maintained under the permission, express or implied, of the city authorities.

There was no question raised upon the pleadings, and although the permission of the city to construct and maintain the cellar way was not pleaded as strictly as it should have been, regarding the action as an action for nuisance (Clifford v. Dam, 81 N. Y. 56), the parties having tried the case upon the assumption that the pleadings were sufficient, the objection that the authority of the city should have been affirmatively alleged in the answer cannot now be taken. If the trial court erred in charging the jury that the cellar way was an unlawful structure, the new trial was properly awarded, and the order granting a new trial must be affirmed. We have arrived at the conclusion that the charge, in this respect, was erroneous, and this renders it unnecessary to consider the other grounds upon which the order for a new trial is sought to be supported. There can be no controversy as to the rule that an unauthorized obstruction or excavation in a public street, impairing its safety, constitutes a public nuisance, and subjects the person or body creating or maintaining it to indictment, and to liability in a civil action to any person sustaining special injury therefrom. The space occupied for sidewalks in city or village streets is as much a part of the street as the part used for horses and vehicles. The owner of a building abutting on a street may use the sidewalk in front of his premises as any other citizen, and, in addition, for the usual purposes of his business, although it may occasion temporary obstruction, provided he does not interfere unreasonably with the public right. There are many special and incidental uses of the sidewalk, founded upon vicinage and business necessity, permitted to him by implication, beyond the bare right to pass and repass upon it. He may load and unload his goods in front of his store, subject to municipal regulation, and for this he needs no authority, beyond that implied from common usage, and the purposes for which streets are opened and dedicated; and many other similar privileges might be mentioned. But an adjoining owner cannot, upon the plea of convenience or necessity, make an excavation in the street in front of his premises, or construct a cellar way extending into the sidewalk, except by permission of a competent authority. The authority to construct vaults under sidewalks, or to make openings therein for a cellar way, or to inclose an area within the line of a street, is not an incident of...

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35 cases
  • Yale Univ. v. City of New Haven
    • United States
    • Supreme Court of Connecticut
    • July 3, 1926
    ...as a valid, reasonable exercise of public authority. Kelty v. Minneapolis et al., 157 Minn. 430, 196 N. W. 487; Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373; Bybee et al. v. State, 94 Ind. 443, 48 Am. Rep. 175; McQuillan, Municipal Corporations, supplement section The authorities upon ......
  • Yale University v. City of New Haven
    • United States
    • Supreme Court of Connecticut
    • July 3, 1926
    ...... sustained as a valid, reasonable exercise of public. authority. Kelty v. Minneapolis et al., 157 Minn. 430, 196 N.W. 487; Jorgensen v. Squires, 144 N.Y. 280, 39 N.E. 373; Bybee et al. v. State, 94 Ind. 443, 48 Am.Rep. 175; McQuillan, Municipal Corporations,. supplement ......
  • Salt Lake City v. Schubach
    • United States
    • Supreme Court of Utah
    • May 31, 1945
    ...property. Perry v. Castner, 124 Iowa 386, 100 N.W. 84, 66 L. R. A. 160, 2 N.Y. Anno. Cas. 363; Id., 130 Iowa 703, 107 N.W. 940; Jorgensen v. Squires, supra; Gustafson v. Hamm, 56 Minn. 334, 57 N.W. 1054, 22 L. R. A. 565. Such special or rights are justified as in the public interest by incr......
  • City of Lewiston v. Isaman
    • United States
    • United States State Supreme Court of Idaho
    • April 14, 1911
    ...... authorize the building by property owners of openings for. cellar-ways in the sidewalks." ( Jorgensen v. Squires, 144 N.Y. 280, 39 N.E. 373.). . . The. authority to construct cellar-ways in the city of Lewiston is. expressly ......
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