Lessin v. Bd. of Educ. of City of New York

• Decision Date: 27 March 1928
• Citation: 247 N.Y. 503,161 N.E. 160
• Parties: LESSIN v. BOARD OF EDUCATION OF CITY OF NEW YORK et al. (two cases).
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 503

161 N.E. 160

LESSIN

v.BOARD OF EDUCATION OF CITY OF NEW YORK et al. (two cases).

Court of Appeals of New York.

March 27, 1928.

Actions by Alexander Lessin, an infant, by Markus Lessin, his guardian ad litem, and by Markus Lessin, against the Board of Education of the City of New York and the City of New York. From a judgment of the Appellate Division, First Department (222 App. Div. 667, 225 N. Y. S. 856), affirming judgment in favor of plaintiffs and dismissing complaint as to defendant City of New York, plaintiffs and defendant Board of Education of the City of New York appeal.

Affirmed.Appeal from Supreme Court, Appellate Division, First Department.

Samuel Lesser, Thomas J. O'Neill and Leonard F. Fish, all of New York City, for plaintiffs.

George P. Nicholson, Corp. Counsel, of New York City (J. Joseph Lilly, Henry J. Shields, Abraham Greenwald and Charles C. Marrin, all of New York City, of counsel), for defendants.

LEHMAN, J.

The infant plaintiff, a boy about eight years old, played tag with some small companions on the sidewalk in front of the Morris High School in the city of New York. In the course of the game he ran upon the platform of an elevator or hoist, which was used to bring coal and other materials into the cellar of the school building and to remove ashes and waste from the cellar. The platform was level with the street, or nearly so. As the boy stepped upon it, one end of the platform gave way, and the boy was precipitated into the elevator shaft or hoistway. He sustained grievous injuries. For the consequent damages liability is asserted against the city of New York and the board of education.

[1] At the place where the children were playing, the sidewalk is unusually wide. The school building is set back several feet from the building line, and the sidewalk extends, without any line of demarcation, to the wall of the building. The opening of the elevator shaft or hoistway in the sidewalk is within the building line, but the whole sidewalk is open to the traveling public and is used by it. The children were lawfully playing upon the sidewalk, even though the sidewalk extended beyond the street line. It may not be said that this boy of eight was guilty of contributory negligence as a matter of law in running in play upon the platform of the elevator, if there was nothing to warn him plainly of danger. Though the danger was due to conditions which existed, not upon the public street itself, but upon abutting property it was a danger to which those using the street were subjected.

[2][3][4] The city of New York has charge and control of the public streets. Towards those using the streets, it rests under a duty of reasonable care to keep the streets reasonably safe. The board of education had charge and control of the school building and its appurtenances. An abutting owner may not render the street unsafe for the public, even by acts done on private property. Both the city and the abutting owner knew that the public used the whole sidewalk. In the absence of some special rule of exemption of liability, each may be held responsible for injuries caused by dereliction on its part in any duty it owed to a person so using the sidewalk. Klepper v. Seymour House Corporation of Ogdensburg, 246 N. Y. 85, 158 N. E. 29.

[5] The complaint charges that the defendants were guilty of both nuisance and negligence. It is said that the opening of the elevator shaft was not constructed in accordance with section 148, article 13, chapter 23, of the Code of Ordinances of the City of New York, and therefore constituted a nuisance regardless of the manner in which it was maintained.

The provisions of the section of the ordinances upon which the plaintiffs rely apply only to obstructions and incumbrances in the city streets and are not intended to render unlawful openings otherwise constructed in the sidewalk within the building line on abutting property, if such openings are constructed in a reasonably safe manner, in accordance with plans approved by the city. In the present case there is nothing in the evidence which suggests that the original construction of the elevator and elevator shaft was not reasonably safe. Liability, if any, must be predicated upon proof that the defendants have been guilty of negligence in the maintenance of the opening. The trial court held that such proof failed to establish wrong by the city and dismissed the complaint against it. The jury has found that the evidence establishes negligence on the part of the board of education.

[6][7] The accident occurred at 2 o'clock in the afternoon. At about 10 o'clock in the morning of the same day, the ‘custodian engineer’ of the Morris High School and the supervisor or superintendent of maintenance of machinery and apparatus of public schools in the borough of the Bronx, who happened to be in the school building in the course of his duties, were informed that, while the elevator was being used for the delivery of coal, the platform had become stuck when a rew inches above the sidewalk. It could not be lowered. A chain at one corner of the platform was broken of had become loosened from the platform. Directions were given to a contractor to repair the elevator. At that time the employees of the board of education had notice that, until the elevator was repaired, it constituted a danger to any person, using the sidewalk, who might step upon it. It was their duty to exercise reasonable care to remove the danger, and reasonable care should be commensurate with the danger that threatens. Here the jury might find that the care exercised did not measure up to this standard. There is testimony that the folding doors, which ordinarily covered the shaft opening when the elevator was not in use, were placed in an upright position and held erect by a bar across the top, and that empty ash cans were ranged in front between these doors. The accident occurred at least three hours thereafter. During the interval the employees of the board of education paid no further attention to the elevator. They were satisfied that the precautions they had taken were sufficient. At the time of the accident, and perhaps, for some hours before, the folding doors lay open, flat against the sidewalk, and there were no ash cans in front of the elevator which was then level with the sidewalk. The precautions taken proved insufficient, and the evidence supports the finding that the employees of the board of education in the exercise of reasonable care...