Opinion
November 13, 1912.
Thomas Carmody, Attorney-General [ Wilber W. Chambers of counsel], for the appellant.
D. Francis Searle, for the respondent.
The Attorney-General urges that this judgment cannot stand, because of a lack of findings by the Court of Claims, and especially because of the lack of a finding as to the extent of the claimant's injury. If the Court of Claims were still in existence the case should clearly be sent back for specific findings upon which the judgment might be supported. After that court had been abolished however, by the Legislature, those specific findings could not now be made, and the question is not free from doubt whether this judgment may stand without them. It is unnecessary, however, to determine this question in our view of the law governing the liability of the State.
In Kleinberg v. Schween ( 134 App. Div. 493) it was held that an owner of land who makes and maintains a lawful excavation thereon is not bound to fence or guard it for the protection of persons upon adjacent premises, not a highway, or habitually or notoriously used by the public as a way of passage. In that case the defendant had constructed upon his own land an areaway twelve feet deep, twenty-five feet long and three feet wide. This areaway abutted upon adjoining premises. The plaintiff, lawfully upon the adjoining premises, in the night time, fell into the areaway and suffered certain injuries. The court held that inasmuch as the areaway did not abut upon a public highway or upon property which was habitually and notoriously used by the public, there was no obligation resting upon the owner to guard it. That case was affirmed upon the opinion of Justice SCOTT, in 198 New York, 619, and, I think, controls the case at bar. In the light of this authority it is immaterial just where the blue line was located, or whether the plaintiff's premises were located upon State land. The sluiceway into which plaintiff fell, and which was left unguarded, was beyond question upon the land of the State. As against the owner of adjoining land, or any one upon such land by license of such owner, the State was under no obligation to guard the same. The sluiceway had been left unguarded for many months to the knowledge of the plaintiff, and the plaintiff could scarcely have prevented a nonsuit for contributory negligence had she not sworn that her fall was caused by dizziness when she was upon the lower step of the house.
The judgment should be reversed, with costs, and the claim dismissed, with costs.
All concurred; BETTS, J., in result.
Judgment reversed, with costs, and claim dismissed, with costs.