Hayton v. McLaughlin

• Decision Date: 29 July 1942
• Citation: 289 N.Y. 66,43 N.E.2d 813
• Parties: HAYTON et al. v. McLAUGHLIN et al.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 66

43 N.E.2d 813

HAYTON et al.

v.McLAUGHLIN et al.

Court of Appeals of New York.

July 29, 1942.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Edward Hayton, an infant, by J. Hayton, his guardian ad litem, and another, against Mary M. McLaughlin, and another, to recover for injuries sustained by plaintiff when he attempted to retrieve a ball from a closed courtyard projecting from named defendant's property into the sidewalk area of street. From a judgment entered March 2, 1942, upon an order of the Appellate Division, 263 App.Div. 245, 32 N.Y.S.2d 292, reversing on the law and facts a judgment in favor of plaintiffs entered upon verdict rendered at a Trial Term, Dodd, J., presiding, and directing a dismissal of the complaint on the law, plaintiffs appeal.

Judgments reversed and new trial granted. Sidney J. Feltenstein, of New York City, for appellants.

William C. Chanler, Corp. Counsel, of New York City (Oren Clive Herwitz and Paxton Blair, both of New York City, of counsel), for respondent City of New York.

Edward T. Costello, of New York City, for respondent Mary M. McLaughlin.

PER CURIAM.

This case was tried upon the theory that it was one of nuisance growing out of negligence. That is a well settled cause of action in this state. Khoury v. Saratoga County, 267 N.Y. 384, 196 N.E. 299, and cases there cited. Since that was the theory of the trial and the basis upon which the case was submitted to the jury under a charge to which no exception was taken, the classifications in the majority opinion in the court below are not applicable. The Administrative Code of the City of New York, L.1937, ch. 929, section 26-233.0, permits the maintenance of such parts of a structure as project beyond the building line until removal is directed. That section is applicable to non-dangerous encroachments existent at the time of the passage of the Code. The encroachment in this instance was eight feet long by fifteen feet, five inches wide and was enclosed by an eighteen-inch wire fence. It was not a nuisance as a matter of law. The city properly states its position as follows: ‘While we believe that the foregoing authorities clearly hold that a fence around a courtyard within the street area is not per se a nuisance, we do not wish to be understood as arguing that such a fence could, under no circumstances, be found to be a nuisance as a question of fact. On the contrary, we think it is clear that where, from...