
    Edwin F. Babbage, Pl’ff, v. Daniel W. Powers, Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Nuisance — Excavation under sidewalk — Authority to construct.
    Although a license or permit from the municipal authorities to excavate under the sidewalk is not shown by positive proof, such authority may be inferred from the use of the same for nine years, without objection, with actual knowledge of the city officials that it existed.
    2. Same — Owner op building, when not liable por.
    An owner of a building who leases the same, when safe and secure, to a tenant, without agreeing to repair, is under no obligation to keep it in a secure condition, and as he is not in possession he is not responsible for an after-occurring nuisance. His bare ownership, and receipt of rent, does not make him liable.
    Motion by the plaintiff for a new trial, founded on an exception to the order of the court directing a non-suit. The exception was ordered to be heard at the general term in the first instance. The action is to recover damages for personal injuries sustained by the plaintiff, by reason of the sidewalk in front of premises owned by the defendant being in an unsafe and insecure condition. At the time of the accident, and for a long time prior thereto, the premises were in the actual possession of one Davis Harris, a tenant, under a lease from the owner. Under the sidewalk there was an excavation connected with the cellar under the building, the same being covered with flag-stone, one of which became displaced or broken, and when the plaintiff stepped through he fell from the sidewalk into the excavation and broke his leg.
    
      Theodore Bacon, for pl’ff; Albert H. Harris, for def’t.
   Barker, P. J.

On the undisputed evidence, two facts were established on the trial which, in law, exempt the defendant from liability for the injuries which the plaintiff sustained, and justified the ruling granting a nonsuit, although the plaintiff was the owner of the premises on which the accident occurred. The first is that the excavation under the sidewalk was made and covered with flag-stones with the consent of the municipal authorities of the city of Rochester. The evidence bearing on this question was of such a character, and so conclusive, that there was nothing for the consideration of the jury. The store in front of which the injury happened was located in the central part of the city, and on one of the principal business streets and in constant use by the public. The building was constructed in 1876, and at that time the area under the pavement was excavated to the depth of the cellar, and extended to the curb and was covered with flag-stone supported on iron girders and firm stone walls. In the walk there was an opening for the purpose of elevating and lowering goods from and to the cellar. Prior to the building of the store there was a stone sidewalk, which had its foundation on the solid earth. The year the building was erected the public streets and sidewalks were in charge of an executive board, consisting of several members, who possessed the powers of highway commissioners, and they kept a record of their doings, in which entries were made by the clerk of the board. For' sometime previous to the erection of this building it was common practice, in the business part of the city, to make excavations under the sidewalks and to cover the same with flagstone, with openings therein as means of access to the excavations and to cellars under the stores.

The clerk of the board, who was also, during the time the store-was being erected, a member of the executive board, knew of the excavation under the sidewalk, and the manner in which it was covered ; and one of the members of the board erected the building under a contract with the owner. There was no entry made in the records kept by the executive board showing that a permit was given the owner to make the excavation, nor was there any proof of a consent in writing that the same might be done. It. was a custom of the members of the board to go about the city and inspect the condition of the streets and sidewalks. There is. no proof that the owner or occupant of the premises were requested to fill up and discontinue the area; nor is there proof that complaint of any kind was made by individuals or the city authorities against the use of the space under the sidewalk for the purposes to which it was devoted.

While it does not appear by positive proof that the owner obtained a license or permit from the municipal authorities to excavate the space under the sidewalk, such authority may be reasonably inferrred from the use of the same, for the period' of nine years without objection, with actual knowledge on the part of the city officials that the same existed. Robbins v. Chicago City,. 4 Wallace, U. S., 657; Jennings v. Van Schaick, 108 N. Y., 530; 13 N. Y. State Rep., 686.

It is well known that the space under the sidewalks in the most, important streets, in large cities, is generally excavated, and devoted to some practical use in connection with the business carried, on in- the building with which it is connected, and such position must be well known to the officers having charge of the-public streets.

No doubt can be entertained but that the city did consent that, the space under the sidewalk might be excavated and devoted to-the use for which it was intended. The city having consented to the use of the public street for the purpose indicated, the owner was not guilty of maintaining a nuisance so long as the space was securely covered. Although the city authorities gave their consent, the duty was imposed upon the owner or occupant to safely cover the area under the sidewalk, so as to make it secure for the public to pass over the same, and if not performed, the area, became an unlawful obstruction to that portion of the streets and a nuisance.

The other controlling fact established by the evidence is, that the sidewalk in front of the store was in a safe and secure conditian up to about the time of the accident. There is no proof of negligence on the part of the owner or occupant up to that time. There is no pretence that the sidewalk in front of the store was out of repair, and was not entirely safe up to near the time of the accident. Conceding that the sidewalk was out of repair and in a dangerous condition at the time the plaintiff received his injuries, we have to inquire if the defendant was guilty of any negligence which charges him with liability to the plaintiff. This question must be answered in the negative, for the reason that he was not in possession and did not have control of the premises at the time the sidewalk became insecure, nor when the plaintiff was injured. The defendant purchased the premises in 1881, and at that time they were occupied by Mr. Harris, under a lease from the defendant’s grantor which had not expired. The tenant attorned to the defendant, and when the time expired the defendant, by an oral agreement, renewed the lease, for an indefinite term, at the same rental, which was paid by him to the defendant.

The plaintiff contends that this arrangement was, in law, a new demise of the premises. This is conceded, and it must be admitted that the relation of landlord and tenant existed at the time of the accident between the defendant and Harris. The terms of the original lease, under which Harris entered, were not disclosed on the trial. Harris had been in possession under that lease before the defendant made his purchase, and the renewal of the lease was made two or three years before the plaintiff was injured.

It is an undisputed fact, that the premises were in the sole and actual possession of Harris, as the defendant’s tenant, when the sidewalk became out of repair and in an unsafe condition. As it is not disclosed that the defendant agreed to keep the sidewalk in repair, he was under no obligation to his tenant or the public to keep the same in good repair and in a secure condition, so that the same could be used with safety, nor was he in possession of the premises, and for these reasons he was not guilty of negligence, although he was the owner of the property. In Clancy v. Byrne, 56 N. Y., 129, it is held that if the premises are in good repair when demised, but afterwards become ruinous and dangerous, the landlord is not responsible therefor, either to the occupant or the public, unless he has expressly agreed to repair or has renewed the lease, after the need of repair has shown itself. See, also, Swords v. Edgar, 59 N. Y., 28; Wolf v. Kilpatrick, 101 id., 146; Ahern v. Steele et al., 26 N. Y. State Rep., 295.

As the pavement was safe and secure when the defendant demised the premises to Harris, he is not responsible for an after occurring nuisance, unless, in some manner, he is in fault for its creation or continuance. His bare ownership and receiving rent for the use of the premises will not produce that result. Such is the current of all the authorities in this state. See Ahern v. Steele supra, and cases there cited. There is no evidence indicating what caused the injury to the pavement, or how long the sidewalk had been in an unsafe condition before the accident, but it is conceded that it happened long after the reletting by the defendant to Harris, and that it had not long existed when the plaintiff fell through the pavement into the area.

Motion for a new trial denied, and judgment ordered for the defendant on the nonsuit.

Dwight, J., concurs; Macomber, J., not sitting.  