Bond v. Smith

• Decision Date: 16 April 1889
• Citation: 21 N.E. 128,113 N.Y. 378
• Parties: BOND v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 378

21 N.E. 128

BOND

v.SMITH et al.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, Fifth department.

Action by Martha S. Bond, as administratrix of Martin W. Bond, against Edward B. Smith, Townsend Davis, and Gustavus Bassett, for damages for injuries causing the death of plaintiff's intestate. A judgment for plaintiff was affirmed by the general term, and defendants appeal.

George Wadsworth and Leroy Parker, for appellants.

Porter Norton, for respondent.

EARL, J.

This action was brought to recover damages from the defendants on account of the death of plaintiff's intestate, caused by his falling into an open and unprotected area upon the premises of defendants, just outside of Webster alley, in the city of Buffalo. In September, 1884, the defendants Smith and Davis owned a lot, 20 feet wide, with a store thereon, occupied by defendant Bassett as their tenant, the front of which was on Main street, and the rear thereof was upon the alley. The rear of the store came within about three feet of the westerly side of the alley, and the space between the store and the alley was occupied by the area, which was eight feet deep, extending the whole width of the lot. The area was entirely open, except a space of three feet and eight inches, which was covered by a stone platform over the middle of the area, used for entrance into a rear door of the store. The wall under defendants' store formed the westerly wall of the area, and the rear of the buildings northerly and southerly of defendants' lot came out flush with the alley, and thus their foundation walls formed the northerly and southerly walls of the area, and the easterly wall thereof was built of stone, no part of which was in the alley, and upon the top of which was a stone coping, seven inches high above the alley, and two feet wide. The alley is midway between and parallel with Main and Washington streets, and extends southerly from Seneca street 239 feet, is 15 feet wide, and has no opening or outlet at the southerly end. On the night of September 16, 1884, the intestate was a watchman in the employment of a private detective agency, whose duty it was to go into the alley during the night and examine the doors and windows of certain buildings, and in the discharge of his duties he entered the alley, and fell into the area after 12 o'clock that night, and subsequently died of the injuries there received.

The defendants Smith and Davis contend that even if their tenant, Bassett, was not solely responsible for the condition of the area, and any injury which might be occasioned thereby, there was no negligence, wrong, or fault in the construction or maintenance of the area which can impose responsibility upon them for this death. This excavation was upon their own land, and was made there in the improvement of their lot, for a purpose entirely proper. They had the right to make and maintain it unless it was manifestly and obviously dangerous to persons lawfully using the alley with ordinary prudence and care. Barnes v. Ward, 9 C. B. 392;Beck v. Carter, 68 N. Y. 283. We have seen what kind of an area this was. It was impossible for any one passing along the street to walk into it, as it was protected on the northerly and southerly sides by the buildings extending to the alley. It was impossible for any one to fall into it from the street without going over the stone coping seven inches high and two feet wide. Now, what kind of an alley was that? It was in some sense a public alley, and all people who chose to could enter therein; but, being closed at one end, it was not a thoroughfare, and in no proper sense was it a street for public travel. It was used only by persons having business with the rear ends of the buildings abutting upon the alley, and almost exclusively during business hours, and in the day-time. It had no sidewalks, descended from both sides to the middle thereof, and was always much incumbered with barrels,...