Wolf v. Kilpatrick

• Decision Date: 19 January 1886
• Citation: 4 N.E. 188,101 N.Y. 146
• Parties: WOLF v. KILPATRICK.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 146

4 N.E. 188

WOLF

v.KILPATRICK.

Court of Appeals of New York.

Filed January 19, 1886.

W. F. MacRae, for appellant, Walter F. Kilpatrick.

H. Morrison, for respondent, Rebecca Wolf.

FINCH, J.

The defendants who appeal were shown to be the owners of premises which had vaults for the storage of coal extending under the sidewalk. The plaintiff was injured by a defect in the stone supporting the cover of the opening, which arose while such premises were in the occupation of one McPherson and others, who were tenants having entire control of the premises. The defect was not one of original construction, but occurred through the act and interference of third persons engaged in building the elevated railway, and who broke the stone supporting the iron cover so that it turned under plaintiff's weight and occasioned the injury. We do not know at what time prior to the accident the defendants became owners. The building and the vault were constructed by McPherson; and if, at the time, the appellants were owners, and responsible for the work actually done, it is still established that the vaults were built under a permit from the city, and in accordance with that license. The coal-hole and its cover were safely and properly constructed, and in the usual and permitted manner. The case is not, therefore, within the doctrine of Clifford v. Dam, 81 N. Y. 52, and the kindred authorities cited by the respondent. In that case no permission or license from the municipality to make the excavation was either pleaded or proved, and the construction of the vaults was an unauthorized wrong and a nuisance, for the consequences of which the owner was responsible, irrespective of the question of negligence. There was the same lack of special authority in most of the other cases to which we are referred. Anderson v. Dickie, 1 Robt. 238;Dygert v. Schenck, 23 Wend. 446;Congreve v. Morgan, 18 N. Y. 79. Nor is the case one in which the owner or landlord has let the premises when in a defective and dangerous condition, (Davenport v. Ruckman, 37 N. Y. 568,) for the proof establishes no such ground of liability.

The evidence does not disclose the precise legal relation existing between the occupants and owners. The former were tenants of some kind, although it does not appear that any rent was reserved or paid to the owners, or that the latter were ever in possession at all. On the contrary, McPherson testified that from the time he built the houses, which was in 1857, to the time of the accident, he had the care and control of the premises, both as owner and occupant; so that the recovery must stand, if at all, upon the sole ground that an owner, who has constructed vaults under the sidewalk lawfully, and with due prudence and care, and transferred possession of the premises, if he ever had it, to third persons, without covenant on his part to repair, is liable for a defect in the vault covering which afterwards occurs through the interference of a stranger, although he may have had neither notice nor knowledge of the defect. The court went so far in the case as to charge that ‘if the plaintiff sustained injury by reason of the defective condition of said coal-hole, and without contributory negligence, then said defendants Kilpatrick are liable in damages,’ to which there was an exception. The court was asked to charge ‘that notice of the alleged condition of the coal-hole must have been given to the Kilpatricks before they could be held liable as owners, when the possession was in McPherson,’ and that, if McPherson was in the control and care of said premises, and deriving all the benefit therefrom, he alone is liable to the plaintiff.' These requests were refused, and the appellants excepted. The basis on which the case was sent to the jury was still more clearly developed in the course of the charge. After stating the liability of the city as founded upon negligence, and involving notice, actual or constructive, of the alleged defect, the learned court added:

‘The law is a little more severe with respect to the owners of the premises for whose benefit this hole in the sidewalk has been authorized. It holds them to a stricter liability. A party injured by falling through any...