Metzroth v. City of New York

• Decision Date: 12 January 1926
• Parties: METZROTH v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 470

150 N.E. 519

METZROTH

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

Jan. 12, 1926.

Action by Millie Metzroth, as administratrix, ect., of Charles P. Metzroth, deceased, against the City of New York, the Garfield National Bank, and others. From a judgment of the Appellate Division (208 N. Y. S. 744, 212 App. Div. 253), affirming a judgment of the Trial Term dismissing the complaint as to three of the defendants, plaintiff appeals by permission of the Appellate Division, which certified a question of law for review.

Judgment dismissing the complaint as to defendant City of New York reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First Department.

Edward L. Blackman, of New York City for appellant.

George P. Nicholson, Corporation Counsel, of New York City (John F. O'Brien and Henry J. Shields, both of New York City, of counsel), for respondent City of New York.David G. George, of New York City, for respondent Garfield nat. bank.

CRANE, J.

[1] On March 24, 1920, about 5 o'clock in the afternoon, Charles P. Metzroth was walking on Forty-Ninth street near Seventh avenue, assuming, of course, that the street was perfectly safe, as it was open and in use by pedestrians. While he was thus passing along the sidewalk, five tons of brick and steel girders fell upon him, crushing and killing him. An overhead shed, upon which these materials had been stored, collapsed and gave way with this disastrous result.

That the overhead shed was insufficient is self-evident. That the inspectors of the city, charged with a duty toward the public regarding these matters, were unable to discover the danger is the present claim of the corporation counsel in this action which has been brought to recover for the death of Metzroth.

That the city is charged with the duty to keep and maintain its streets and highways in a reasonably safe condition for the use of the public is so well established that there is no attempt here to question the statement. This duty the city itself cannot shift to other persons. Bieling v. City of Brooklyn, 24 N. E. 389, 120 N. Y. 98. Unless the Legislature has seen fit to relieve or limit this responsibility, the duty remains and must be performed. It has not been shifted to the building department as such. Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 264, 48 Am. Rep. 622;Scott v. Village of Saratoga Springs, 92 N. E. 393, 199 N. Y. 178;Henry v. City of Saratoga Springs, 155 N. Y. S. 942, 171 App. Div. 827;Hines v. City of Lockport, 50 N. Y. 236;Lockwood v. City of Dover, 61 A. 32, 73 N. H. 209;Niven v. City of Rochester, 76 N. Y. 619;Kleopfert v. City of Minneapolis, 100 N. W. 669, 93 Minn. 118.

[2][3] The corporation counsel now urges that, even though the city is responsible for the safety of the streets and highways, yet, as the building department, a branch of the city government, has control of the erection of buildings in the exercise of the police power of the state, it also has control of a shed over a sidewalk put up to protect pedestrians from falling material during the course of such erection. The shed coming within the building regulations based on police power, the city has no duty to keep it safe for travelers on the highway. The function of supervision is governmental, not administrative. In other words, although the city may be liable for a defective bridge substituted for a sidewalk over which people walk (Parks v. City of New York, 98 N. Y. S. 94, 111 App. Div. 836; affirmed 80 N. E. 1115, 187 N. Y. 555), it cannot be liable for a defective shed under which they walk. There can be no such distinction, as none exists in fact or in principle. The city can close a street if there be any question regarding its safety or condition for use. When it leaves a sidewalk open to the public, people have a right to assume that the city has fulfilled its legal obligations, and that the place is reasonably safe to walk upon, safe from dangers below or above. Whatever may be the nature of the duties of the building department regarding buildings, in so far as the employees of that department interfere with the streets and highways, they are the servants and agents of the city, by and through whom it may have notice of conditions or be liable for nuisances created. See above cases.

[4] These principles become more apparent when applied to the facts of this case. This is not a case of nuisance, but of negligence. The shed which was erected may have been proper to protect pedestrians from falling material (I do not say that it was), and it may have been insufficient for the purpose of storing material on the top of it. If it were sufficient for any purpose, but improperly used, the city would not be liable until it had notice, either actual or constructive, of the danger arising from such improper use. The evidence in this case is sufficient to show, in my judgment, both actual and constructive notice to the city of the improper use being made of the shed, and of the danger to pedestrians arising therefrom. The dismissal of the complaint as against the city was, therefore, error. Let me state the facts more in detail:

The Garfield National Bank was the owner of premises at the northwest corner of Seventh avenue and Forty-Ninth street, which it had leased to a corporation known as ‘742 Seventh Avenue Corporation.’ The building on the premises was to be torn down, and a new building erected. Tearing down the biilding would cause danger from falling material to people passing in the street. Such condition was recognized and provided for in the Building Code and in the Charter of the City of New York. The parties complied with these provisions, and procured from the borough president and the highway department a permit to erect the shed over Forty-Ninth street.

The provisions of law applicable are the following: Section 191 of the Building Code reads:

‘Whenever any building or part thereof, within ten feet of the building line, is to be erected or raised to exceed forth feet in height, or whenever such a building more than forty feet in height is to be demolished, the owner or the person doing or causing such work to be done shall erect and maintain during such work a substantial shed over the sidewalk in front of said building and extending, so far as practicablefrom building line to curb. * * * Such shed shall remain in place until the building is enclosed, or, in case of demolition, until the building, has been reduced to twenty feet in height. Every such shed shall be kept properly lighted at night.’

Section 50 of the Charter of the City of New York (Laws 1901, c. 466) provides that the board of aldermen shall have power to regulate the use of streets and sidewalks by foot passengers, but shall not have the power to authorize the placing or continuing of any encroachments or obstructions upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same. By section 383 of the Charter the president of the borough is given the right to issue permits to builders and others to use or open the streets. The bureau of buildings, by title 2 of chapter 9 of the Charter, is made a part of the office of the borough president, and in Manhattan the borough president may appoint a superintendent of buildings for that borough. Other provisions of this title specify the duties of the superintendent of buildings and of his department.

Pursuant to these provisions, the president of the borough of Manhattan, bureau of highways, issued a temporary roof and shed permit--

‘to erect and maintain a temporary roof or shed, 100 feet long, over the sidewalk in front of the building and premises at N. W. Cor. 7th Ave. & 49th St. upon the following conditions:

‘1. The portion of the sidewalk to be covered shall include all of that between the building line and the curb. * * *

‘4. The construction of the roof or shed shall be of sufficient firmness and strength to withstand the weight of all material placed or falling thereon, and the holder of this permit assumes all liability for loss or damage to persons or property that may occur through faulty construction or neglect to comply with this provision.

‘This permit is issued subject to the strict observance of all laws, ordinances, an regulations enacted for the protection of the city so far as they may apply.

‘M. F. Loughman,

‘President of the Borough.’

The use of the word ‘substantial’ in the ordinance and the word ‘sufficient’ in the permit is of course relative to the use which is to be made of the shed. They mean nothing, unless the city and its officials know what use is to be made of the structure. Section 200...