
    Trustees of the Village of Canandaigua, Resp’t, v. William L. Foster, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Municipal corporation—Street—Abutting owner.
    An abutting owner, who reconstructs a coal hole in the sidewalk without the consent of the village, is liable to such village for the damages it is compelled to pay to a person injured thereby.
    Appeal from an order denying, a new trial on the minutes of the court.
    
      John Gillette, or app’lt; Frank Bice, for resp’t
   Dwight, P. J.

One McSherry, in 1889, brought an action against the village of Canandaigua for injuries sustained by him in falling on a defective sidewalk, in front of premises of defendant, on one of the streets of that villnge. The plaintiffs gave the defendant notice to defend the action, and he undertook to do so. Judgment, however, went against the village, which the plaintiffs paid, and now bring their action over, to recover of the defendant the amount so paid. The defect in the sidewalk was a loose grating, covering the opening into a vault beneath. The vault was excavated and the grating set by the defendant many years before, with the acquiescence and consent, actual or implied, of the village authorities. Babbage v. Powers, 130 N. Y. 281; 41 St. Rep. 521. It was, therefore, out^-of the question that the plaintiffs should recover over, agaij/st the defendant, for the original construction, good or badij 0f fee vault and grating (Trustees of Geneva v. Brush Electric Co. 50 Hun, 581; 20 St. Rep. 422; affirmed, 130 N. Y. 670; 41 St. Rep. 952); and so the court held at the circifefc But the de«£^ant recon' structed the opening and reset'the grating in the "SM£-mer °f 1888, and the evidence on the'-part of the plaintiffs' show that this work was done m an improper manner, and that* in consequence of it the grating soon after came to be in an unsafe condition, and that the accident to McSherry resulted there from. This evidence presented the main question which was sub' mittee to the jury, and properly submitted, i]s we think. There was no evidence of consent on the part of the.ivillage to the reconstruction, nor lapse of time from which acquiescence should be inferred. • If, therefore, the reconstructed opening and grating were a nuisance, the defendant, and not the village, was primarily liable for injuries to third persons resulting therefrom. As we had occusion to say in the Case of Village of Geneva, supra: “ The general rule which denies indemnity or contribution to jo.int wrong-doers is elementary. The cases in which recovery over is permitted in favor, of one who has been compelled to respond to the party injured are exceptions to the general!' rule, and are based upon principles of equity. Such exceptions obtain in two classes' of cases: First, where the party claiming indemnity has not been guilty of any fault except technically or constructively, as where an innocent master is held to respond for the tort of his servant, acting within the scope of his employment; or, second, where both parties have been in fault, but not in the same fault, towards the person injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.”

Illustrations of the second class were found in cases, like the present, “of recovery against municipalities for obstructions to the highways caused by private persons. The fault of the latter is the creation of the nuisance; that of the former, the failure to remove it, in the exercise of its duty to care for the safety of the public streets. The first was a positive tort, and the efficient cause of the injury complained of; the latter, the negative tort of neglect to act upon notice, express or implied.” The cases here cited of Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Village of Seneca Falls v. Zalinski, 8 Hun, 575, and City of Rochester v. Montgomery, 72 N. Y. 65, and many others of like character, are cases of the second class above described; and they clearly support the submission of this case to the jury, with the instruction, in effect, that if they should find that, in the reconstruction of the grating, the defendant did the work improperly, and in such a manner as to make the use of the sidewalk dangerous, and that the accident in question resulted therefrom, then the plaintiffs might maintain their action over, against the defendant.

The next following instruction of the court to the jury in this case related to the question of the defendant’s neglect to keep the opening in the sidewalk and its covering in repair, without reference to that which way-dlone by way of reconstruction in 1888. The instruction was ii efeect, that if the defendant negligently permitted the structu,-. in question to fall into disrepair, and thus to become dangers to passengers on the sidewalk, and the accident in quests resulted therefrom, the village, being subjected to -the paynjgfit 0f damages ttóereby, wa? entitled to recover the same fidefendant. Th'is instruction was also, we think, J&recton the principle that the defendant, when he availed him'self of the license by implication to'make the opening m the sidewalk did so under the implied contract, not only to do the work in a’safe and proper manner, but also to keep the structure m a safe condition, by repairs, as the same should become necessary. Babbagle v. Powers, 130 N. Y. 281, 286; 41 St. Rep. 521, and the' cases cited. In Babbage v. Powers, the defendant was held not liable ; as an original trespasser, because of the implied license, as in thjfs case, to make the opening ; and the question of his neglect tokt,ep it in repair was not considered, because, as is premised in the cutset of the opinion of the court, no charge of negligence was m*ac|e by the plaintiff. Nor do we. find this instruction to be in contravention of the principles established by the case of City of Rochester v. Campbell, 123 N. Y. 405; 34 St. Rep. 77, which arose on 'demurrer to the complaint, because the court there say : “ It will be observed. that the complaint does not charge the defendant’s testator with negligence, or the breach of any contract duty; but ^his liability is predicated wholly upon the statutory duty to repalir and the assumption that ah omission to perform it imposes a liability in favor of all persons who may be injured by such omission.”

It Appeared in evidence that, at the time of the accident to McShdrry, the premises to which the vault or coal hole was attached, being one store in a block owned by the defendant, was under! lease to a man by the name of Parsons, for the term of three .years from the 1st day of April, 1886; that the tenant was in possession from that date to and including the date of the accident ; add that the lease contained no covenant on the part of the lessor t.o repair. At the close of the evidence, counsel for the defendant .moved for the direction of a verdict, on the ground, among ethers, that the defendant was not in possession or control of the preimises at the time of .the accident.’ The defendant also requested; the court to charge the jury that, if the grating was in proper position at the time the store was leased to Parsons, there could be ino recovery against the defendant after that time. It is apparent Ihat both the motion, on the ground stated, and the request to ..charge, were properly denied. Both ignored the facts which constituted one of the principal grounds upon which the plaintiffs cilaimed to recover, viz. those which related to the reconstruction -of the opening and its cover in 1888. That was during the terna of the lease, but the defendant, as owner of the premises, the.’j assumed sufficient control' to make the change in the structure complained of; and we have approved the submission to the jury of the question whether that new construction was made in an ' improper manner, which rendered the sidewalk unsafe for passengers, and was the cause of the accident in question. This questiova was plainly unaffected by the lease to .Parsons, and to have granted either the motion or the request above stated would have withdrawn that question from the jury.

We find no question in the case beyond those already considered which seems to require discussion. The order appealed from should be affirmed. All concur.

So ordered.  