Farley v. Mayor, Etc., of City of New York

• Decision Date: 16 March 1897
• Citation: 46 N.E. 506,152 N.Y. 222
• Parties: FARLEY v. MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 222

46 N.E. 506

FARLEY

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

March 16, 1897.

Appeal from supreme court, appellate division, First department.

Action by Lawrence P. Farley against the mayor, aldermen, and commonalty of the city of New York for personal injuries. From a judgment of the appellate division, First department (41 N. Y. Supp. 622), affirming a judgment dismissing the complaint, plaintiff appeals. Reversed.

Charles Steckler, for appellant.

Francis M. Scott and William H. Rand, Jr., for respondent.

ANDREWS, C. J.

We think the case should have been submitted to the jury. The evidence would have authorized a finding that for several months preceding the accident the truck against which the hose cart collided had been, to the knowledge of the policemen on duty, left during the nighttime standing in the roadway on Broome street next to the curb, at or near the place where it was at the time of the collision, and that no report had been made by the policemen of the fact, nor any measures taken by the public authorities by notice to the owner or by proceedings to enforce the penalty given by the ordinance to remedy the nuisance. The truck was an obstruction to the street, and both at common law and by the ordinance the using of the street for the storage of the truck was an illegal act. Cohen v. Mayor, etc., 113 N. Y. 535, 21 N. E. 700; New York City Ord. art. 4, § 33. It is, moreover, made the duty of the commissioner of public works, by section[152 N.Y. 226]324 of the consolidation act (Laws 1882, c. 410), to remove or cause to be removed all unharnessed trucks found in a public street in the nighttime, unless there by permission of the mayor. The storing of the truck in the street was the act of the owner, without authority from the city; and the rule applies that, in order to charge a municipality for an injury happening to a third person using a street therein, from an unlawful obstruction placed therein by a stranger without authority, it must appear that it had notice, express or implied, of the existence of the obstruction before the accident, and that a reasonable time had elapsed subsequent to the notice, and before the injury, during which it could have abated the nuisance. Until it had received such notice, and an opportunity had been afforded, in the exercise of reasonable diligence, for the city to have acted, there would be no breach on its part of the duty resting upon municipal corporations to use all reasonable care to keep the streets in a safe condition for travel. It is undoubtedly true, as a general rule, that a municipality is not called upon to anticipate infractions by third persons of the law or ordinances relating to its streets, enacted to secure their safety and an unobstructed right of passage. But in this case the custom of the owner of the truck to leave it in the street at this point during the nighttime had existed for several months...