Trs. of Vill. of Canandaigua v. Foster

• Decision Date: 07 June 1898
• Citation: 156 N.Y. 354,50 N.E. 971
• Parties: TRUSTEES OF VILLAGE OF CANANDAIGUA v. FOSTER.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 354

50 N.E. 971

TRUSTEES OF VILLAGE OF CANANDAIGUA

v.FOSTER.

Court of Appeals of New York.

June 7, 1898.

Appeal from supreme court, general term, Fifth department.

Action by the trustees of the village of Canandaigua against William L. Foster. From a judgment of the general term (30 N. Y. Supp. 686) affirming a judgment on a verdict in favor of plaintiffs, defendant appeals. Affirmed.

William F. Cogswell, for appellant.

Frank Rice, for respondents.

VANN, J.

By this action the plaintiffs sought to recover the damages which they had been compelled to pay on account of personal injuries sustained by one McSherry, through an accident caused by a defective grate in the sidewalk in front of defendant's premises. For many years prior to 1889 the defendant owned certain land on the northwest corner of Main and Bristol streets, in the village of Canandaigua, bounded on the east and south by the outer line of said streets, and extending 96 feet on Bristol, and 40 feet on Main. A brick block, consisting of several stores, three stories high, substantially covered the lot. In 1872 the grate in question, with several others, was constructed by the defendant along the north line of Bristol street, to enable him and his tenants to convey coal to the cellars under said block; and they remained there without complaint on the part of the public authorities until March 4, 1889, when said McSherry stepped on one of the grates that was out of repair, and was injured. This grate was in the sidewalk in front of a ‘store’ in said block that was leased to one Parsons for a term, which had not expired when said accident happened. The lease gave the defendant no right of access to the premises for any purpose during the term, and imposed upon him no obligation to make repairs. The tenant covenanted to surrender the premises at the end of the term in as good condition as they were at the date of the lease, necessary wear and damage by the elements excepted. The description of the demised premises included the ‘store,’ with the privileges and appurtenances, but did not specifically describe or include the use of the sidewalk or the grate, which was in good order when Mr. Parsons took possession. The two stories over the store were retained by defendant or leased to other tenants who could not use the grate, as it was connected only with the premises leased to Parsons. After the commencement of said term, the defendant repaired the grate once, but there was evidence tending to show that it had been out of repair for a number of weeks prior to the accident. When the plaintiffs were sued by McSherry, they notified the defendant to defend, and he aided in the defense; but the action resulted in a judgment against the village for $1,608.29, which, after affirmance both by the general term and the court of appeals, was paid by the plaintiffs. 59 Hun, 616,12 N. Y. Supp. 751, and 129 N. Y. 612, 29 N. E. 821. The recovery in that case was upon the ground that the grating in the sidewalk was out of repair, and that the village authorities knew, or should have known, of the fact.

Upon the trial of the action now before us, the court charged the jury that if they found the grate was not properly reconstructed when repaired in 1888, and that was the cause of the accident, the defendant was liable to the plaintiffs, but, if they found ‘that it was not a faulty construction, he is not liable, as far as that question goes.’ No fault is found by the appellant with this part of the charge. The court further charged that, ‘upon all this evidence, it is for you to say whether or not this defendant, acting with due care and reasonable diligence in the protection of the public against injury, ought to have known the condition in which that grate was. If he ought to have known it, he is in the same position, legally, as if he had actually known it; and, if he had actually known it, the duty rested upon him with diligence to put the walk into condition so it would be reasonably safe for public use. If you find that the defendant did not use reasonable care to ascertain whether or not the grate was in reasonably proper condition for public use, you will find a verdict for the plaintiff.’ To this the defendant excepted. The court also charged ‘that Mr. Foster owed no duty to repair the sidewalk generally which can be used as a basis for any recovery here, but he did owe the duty to keep in repair the particular place we are talking about.’ To this the defendant also excepted. These exceptions present the only question argued before us.

From the length of time the grate was permitted by the representatives of the village to remain in the sidewalk without objection, the presumption arises that it was placed there with their consent. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132;Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373. The defendant alleged in his answer that the grate was constructed with the consent of the plaintiffs, and therefore, after the lapse of 17 years, he cannot be held liable as a trespasser, but only, if at all, upon the ground of negligence. Irvine v. Wood, 51 N. Y. 224, 228. It was his duty, however, as long as he owned and was in full possession of the premises, to use reasonable diligence to keep the grate in repair, so that it would be as safe as any other part of the sidewalk. Congreve v. Morgan, 18 N. Y. 84;McGuire v. Spence, 91 N. Y. 303; Shear. & R. Neg. (5th Ed.) § 703. It was built for his accommodation, and was a benefit to his property only; and the law placed upon him the obligation of using due care to keep it in a suitable and safe condition for the public to walk over as a part of the sidewalk. Proper construction, in the first place, was not enough to relieve him from liability; but the duty of inspection and repair continued while he owned and was in the exclusive possession of the premises. The duty ran with the land as long as the grate was maintained for the benefit of the land. As was said as early as Heacock v. Sherman, 14 Wend. 58, 60, the owner ‘is bound to repair * * * in consideration of private advantage.’ The doctrine of implied duty, which is well established by the authorities, requires the person who, even with due permission, constructs a scuttle hole in the sidewalk in front of his premises, to use reasonable care for the safety of the public, as long as it remains there and is subject to his control. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132;Wolf v. Kilpatrick, 101 N. Y. 146, 4 N. E. 188;Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424;Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550;Davenport v. Ruckman, 37 N....