Opinion
December, 1910.
John R. Abney, for appellant.
Jerome Ullman, for respondent.
This action was tried upon the theory of nuisance. It appears that, on the 18th day of October, 1909, the plaintiff, while passing along the sidewalk in front of No. 345 West Fiftieth street, fell into a coal hole or chute in front of and used in connection with the said premises, and sustained injuries. It is undisputed that the defendant took title to the premises No. 345 West Fiftieth street, on September 15, 1909, subject to a lease expiring May 1, 1910; that the lease subject to which the defendant took title was then in force, by the terms of which the lessee was to make all repairs; and that the tenant under said lease was then in actual possession of the premises. No proof was given, either as to the possession or control of the premises by the defendant at the time of the accident, or of any actual or constructive notice on the part of the defendant of any dangerous condition tantamount to a nuisance, or of any defect whatever. It is not enough, to recover in an action like this, to prove that it was possibly or even probably caused by the negligence of the defendant. No fault of omission or commission on the part of the defendant leading to the injury was shown, except only that it was the owner of the building, which was admitted in the answer.
In Ahern v. Steele, 115 N.Y. 209, it is held that, "It is not the general rule that an owner of land is, as such, responsible for any nuisance thereon. It is the occupier, and he alone, to whom such responsibility generally and prima facie attaches. The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance and then demises the land with the nuisance thereon, although he is out of occupation; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it; if he has demised premises and covenanted to keep them in repair, and omits to repair, and thus they become a nuisance; if he demises premises to be used as a nuisance, or for a business, or in a way so that they will necessarily become a nuisance. In all such cases I believe there is now no dispute that the owner would be liable. * * * When there is no proof that the owners of premises which came to them with a nuisance existing thereon without their fault, were ever in possession of the premises, or even saw them, there is no possible ground for charging them with notice or imputing to them legal fault." In the case at bar there is no evidence tending to show that the defendant was ever in possession of the premises or ever saw same. Conhocton Stone R. Co. v. Buffalo, N.Y. E.R. Co., 51 N.Y. 573; Washington v. St. Peter's Episcopal Church, 111 A.D. 402; Sherman v. Western Transportation Co., 62 Barb. 150; Clancy v. Byrne, 56 N.Y. 129-134; Woram v. Noble, 41 Hun, 398; Edwards v. N.Y. Harlem R.R. Co., 98 N.Y. 245; Wolf v. Kilpatrick, 101 id. 146; Uggla v. Brokaw, 117 A.D. 586; Trustees of Canandaigua v. Foster, 156 N.Y. 354.
The weight of evidence is overwhelmingly against the plaintiff and in favor of the defendant.
The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
GUY and GAVEGAN, JJ., concur.
Judgment reversed.