Hayes v. Brooklyn Heights R. Co.

• Decision Date: 13 December 1910
• Citation: 200 N.Y. 183,93 N.E. 469
• Parties: HAYES v. BROOKLYN HEIGHTS R. CO.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 183

93 N.E. 469

HAYES

v.BROOKLYN HEIGHTS R. CO.

Court of Appeals of New York.

Dec. 13, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Edwin A. Hayes against the Brooklyn Heights Railroad Company. From an order of the Appellate Division (134 App. Div. 912,118 N. Y. Supp. 810), affirming an interlocutory judgment of the Special Term, sustaining a demurrer to a separate defense of the answer, defendant by permission (136 App. Div. 888,119 N. Y. Supp. 1128) appeals. Reversed, with leave to withdraw demurrer.

D. A. Marsh, for appellant.

Charles C. Clark, for respondent.

HAIGHT, J.

This action was brought by the plaintiff to recover damages for a personal injury alleged to have occurred on the 12th day of March, 1902, on Second avenue, in the borough ot Brooklyn, by reason of his stepping into a hole or rut while crossing the avenue. The complaint alleges that the defendant was operating a street surface railroad upon the avenue in question, and that it was its duty to keep in repair that portion thereof between the rails of its tracks and two feet in width outside of its tracks, and that for a long time prior thereto the defendant suffered that portion of Second avenue to become and continue out of repair, and a rut or hole to be formed therein, and to become rough and uneven, and, further, that the suffering and loss of earning power and income of the plaintiff by reason of his injury ‘were due solely to the wrongful and unlawful conduct of the defendant, its agents and servants, in suffering said hole or rut to be and remain in the street near its tracks' The separate defense interposed by the defendant, to which the plaintiff demurred, is ‘that the cause of action upon which a recovery is herein sought did not accrue within three years next before the commencement thereof.’ The Special Term sustained the demurrer, and from the interlocutory judgment entered thereon an appeal was taken to the Appellate Division, which affirmed the same by a divided court. 134 App. Div. 912,118 N. Y. Supp. 810. This action was commenced on the 11th day of March, 1908.

The question presented is as to whether the action is based upon a nuisance or negligence. It will be observed that the complaint fails to allege that there existed a nuisance or that the defendant was negligent. Under the statute of limitations it is provided that an action to recover damages for a personal injury, ‘except in a case where a different period is expressly prescribed in this chapter,’ shall be brought within six years; and it is further provided that an action to recover damages for a personal injury resulting from negligence shall be brought within three years. Code Civ. Proc. §§ 382, 383. If, therefore, the action alleged in the complaint resulted from negligence, the separate defense set forth in the answer was good, and the demurrer should not have been sustained. If, however, it did not result from negligence, then the demurrer was properly sustained.

A public nuisance, in so far as it applies to the case under consideration, consists in unlawfully doing an act or omitting to perform a duty, which act or omission endangers the safety of any considerable number of persons, or unlawfully interferes with, or tends to render dangerous, a public park, square, street, or highway. Under the railroad law the duty is imposed upon street surface railroads of keeping the space between their tracks and two feet on either side thereof in good and safe condition. Consol. Laws, c. 49, § 178. The duty, therefore, of municipalities of keeping their streets and highways in good and safe condition, is, to the extent specified by the statute, also devolved upon the railroad corporations, whose duty with reference thereto becomes the same as that which rests upon the municipality.

It will be observed that, under section 382, above referred to, the six-year statute of limitations has no application in a case where a different period is expressly prescribed, and under section 383 a different period is prescribed where the injury results from negligence. The question, therefore, arises as to whether the alleged injury in this case was the result of negligence on the part of the defendant. If a municipality or a railroad company should...