
    PORTER v. WARING.
    
      New York Court of Appeals;
    
    
      March, 1877.
    Sidewalks.—Evidence.—Judicial Notice.—Pkoof of Municipal Obdinances.—Appeal.
    The word “sidewalk” has no strict legal interpretation, and its meaning in a covenant must be governed by evidence as to the limits and extent of the sidewalk in question, in the street where it is located.
    The court can not properly take judicial notice of the width of streets or of sidewalks. Nor of any fact connected with the same not generally understood.
    Nor can the court take judicial notice of the ordinances of a municipal corporation establishing the sidewalks, and defining their width. The doctrine of judicial notice does not include knowledge of facts so remote and indefinite as to require extrinsic evidence, and which are dependent upon municipal regulation, and the action of the legislative power of local corporate authorities.
    
    
      Even if the court could take judicial notice of a municipal ordinance, they can not take judicial notice of matters of fact necessary to determine whether the case be one in which the ordinance applies.
    The rule allowing new evidence to be admitted on appeal, is confined to record evidence read in support of a judgment. Such evidence can not be read for the purpose of effecting a reversal.
    The statute (L. 1832, chapter 158; 3. R. S. 6th Ed. 670, § 108)— allowing ordinances of the city of New York to be read in evidence, relates to their introduction upon a trial, and does not make them evidence on appeal.
    
    Appeal by plaintiff from a judgment at general term of the supreme court, affirming a judgment for the defendant.
    The action was brought by Timothy D. Porter, to restrain William E. Waring from using a private stable, as constructed, upon the alleged ground of violation of a covenant in the deed conveying the lot on which the building was erected.
    By the deed of conveyance, dated July 1,1871, the defendant was to build a private stable upon the rear of the lot conveyed, of specified materials and plan of construction, and' the deed contained these words; “there shall be no opening in the sidewalk in front of the stable.”
    The defendant erected upon the premises described a stable of the description expressed in the deed, leaving an area for ventilation which the plaintiff claims is°in the sidewalk. This area forms the subject of the contention in this suit.
    The stable was constructed and completed under the daily personal observation of the plaintiff, who resided, during the entire progress of the building, upon the next adjoining lot.
    The only.evidence that there was any sidewalk, or of its location, was. in a certain diagram, put in as an exhibit, and in the testimony verifying the diagram, by which it appeared that the opening, or area complained of, was not in the sidewalk.
    The cause was tried at special term. The court found that: “ There is an open area in front of the
    stable; ” that “this opening is within the line of fence, adopted by the owners of all the lots, from the Third avenue to Lexington avenue; ” and, that “no part of the opening is in the sidewalk;” and dismissed the complaint.
    The plaintiff appealed to the general term, which affirmed the judgment below ; and from that judgment he then appealed to this court.
    Appellant printed at the end of his case on appeal, an extract from the ordinances of the city, and a certificate made by the superintendant of. street improvements, stating the width of the street in question, which he desired to have considered by the court.
    
      Theodore W. Dwight, for appellant.
    
      Henry H. Anderson (Anderson & Young, attorneys), for respondent,
    Urged, that this was not a case where record evidence could be adduced on appeal, under the rule in Jarvis v. Sewall, 40 Barb. 455; Rockwell v. Merwin, 45 N. Y. 168 ; Catlin v. Grissler, 57 Id. 373,— cited Stilwell v. Carpenter, reported at p. 238 of this vol. That the court could not notice municipal ordinances : People ex rel. Houston v. Mayor, 7 How. Pr. 81; Fauntleroy v. Hannibal, 1 Dillon, 118, note; Lenahan v. People, 3 Hun, 164, affi’d, 62 N. Y. 623.
    
      
      But, perhaps, where, as in the case of certain highways, the width is fixed by law, the court, by taking notice of the law may, in the absence of evidence, presume a road to be of the lawfully required width. Lawton v. Commissioners of Highways, 2 Cai. 179; Cleveland v. Cleveland, 12 Wend. 172; Peckham v. Henderson, 27 Barb. 207.
    
    
      
      The doctrine of judicial notice is stated in the books as a rule dispensing” with proof, or with averment, or both, on certain subjects. In respect to public general statutes, or other general rules of law of the State within which the court is, there is no inconvenience in regarding it in this light. But with respect to all matters of fact, the foundation of the principle is essentially different, and its practical use both uncertain and precarious. The court is bound to take notice of the law; hence it is error not to do so. But in respect to nearly all matters of fact of which it may take notice, it is not bound to do so; and whether it will do so or not, depends partly on the nature of the subject, the issue, the apparent justice of the case, partly on the information of the court, and the means of information at hand, and partly on the judicial disposition. The language of the cases on the rule is very commonly misleading, in saying that the court is bound to take notice of such or such a fact, when all that is meant is that the court may do so, and in doing so complies with a sense of justice in the particular case. The cases in which the refusal of the court to take notice of matter of fact without proof, has been held error, are rare.
      In its application to matters of fact, the rule is rarely serviceable as a rule of trial evidence. Its practical value is in the law of appeal, not in the law of evidence. If from any reason evidence to support the judgment was lacking at the trial, or fails to appear adequately in the record, the appellate court may, and often will take notice of that which is generally known and ought to be so, or is of public and general concern, and has been duly and publicly authenticated in repositories of fact open to the world, especially if of an official, scientific, or historical nature. Where the trial court, without objection from either party, has thus drawn on the common stock of universal and unquestioned knowledge, and has proceeded to judgment in reliance thereon, in connection with the evidence in the cause, the appellate court will often judicially notice the existence of the fact thus assumed, especially if it is properly presented to their notice by counsel. But when objection is taken at the trial, and a party challenges proof of an essential fact, his adversary has usually no very strong ground for insisting on a finding in his favor without evidence. Still less can one who has failed for want of evidence, justly request the appellate court to reverse the judgment by taking notice on appeal of that which did not appear in proof on the trial.
      
        For numerous illustrations, see the cases collected in the United States Digest, title Evidence, II.
    
    
      
      The act makes the ordinances so read, prima fade evidence only. Howell v. Ruggles, 5 N. Y. 444. See also Logue v. Gillick, 1 E. D. Smith, 398; Kennedy v. Newman, 1 Sandf. 187; Code of Civil Procedure, § 941.
    
   Miller, J.

By the covenant in the deed from the plaintiff to the defendant, for the violation of which this action was brought, the defendant had a right to erect a stable on the rear part of the lot conveyed to him ; but it was provided that there should be no openings in the sidewalks in front of the stable. The judge before whom the case was tried found that there was an open area in front of the stable, and that no part of the opening was in the sidewalk.

It was not questioned upon the trial that there was an opening in front of the stable, some five feet wide ; but no positive evidence was given by any person familiar with the lines of the street, or with the width or location of sidewalks therein, nor any ordinance or resolution of the common council, or survey made by a competent engineer or public official for the purpose of establishing the exact location of the sidewalk.

A diagram of the premises introduced in evidence showed that the opening was within a line of fence adopted by the owners of lots between Third and Lexington avenues, and that no part of the opening was within the limits of what was used or claimed as a portion of the sidewalk. It is true that there was some evidence for the plaintiff that the opening was in the sidewalk, but there was no direct proof to the effect that the fence erected by the owners was not on the line of the street, or that it was on the sidewalk, or that such portion of the street as the law required was not used for the purpose of a sidewalk. No witness was called to show any measurement or survey, or to prove that the sidewalk was encroached upon. The diagram was really the only proof of the actual location, and it showed that a uniform line had been established by the owners for fences, railings and areas, and that the stable was in the rear of that line several feet, with an area in front of the stable which came up to the sidewalk and did not encroach upon it. As the case stood the finding of the judge is fully sustained by the evidence. What constitutes a sidewalk in the sense in which it was employed in the covenant in question depends upon the proof given upon the trial. The word of itself has no strict legal interpretation, and its meaning and import must be governed by facts showing the limits and extent of the same in the street where it is located. And although courts may take judicial notice of what is usually within the knowledge of most men, as perhaps of the well known and admitted fact that streets in the city of New York are public highways, and of other matters which are equally notorious and well understood, yet it by no means follows that they can take notice of the width of streets or of sidewalks, or of any fact connected with the same not generally understood, nor of the ordinances of the corporation which establish the same, define their width, and prescribe and regulate their limits and extent. These details are to be proven by competent evidence, and cannot within any well settled rule established by the decisions of the courts, be considered as embraced within the knowledge of a judge upon a trial without testimony to show the actual state of the facts.

If the court could take judicial notice of the ordinances of a municipal corporation, it would involve the consideration of all the numerous enactments, whether printed or otherwise, which the common council have adopted which relate to the subject of the controversy, and the existence of many of which might be entirely unknown to the parties or their counsel. It would open the door, in many cases, to mere conjecture, and involve an inquiry as to local enactments, the time when they took effect, the priority of the same, and their application to the case in litigation, which it would be difficult to dispose of without proof, and which are not properly embraced within the ordinary scope of judicial knowledge in the determination and trial of cases. The authorities cited by the appellant’s counsel do not extend the doctrine stated so as to include knowledge of facts so remote and indefinite as to require extrinsic evidence, and which are dependent upon municipal regulation, and the action of the legislative power of local corporate authorities.

No case has been cited which establishes the doctrine that a judge upon a trial has a right to assume that such ordinances are to be regarded as evidence, and to exercise a controlling weight, without proof of the same, in the disposition of cases. But even if they could be so considered, there are difficulties in rendering the ordinance sought to be introduced and the certificate of the street commissioner effective in proving facts which aid the plaintiff’s case, without extraneous evidence to show the application to the case presented in the record before us, which cannot be overcome or surmounted. The evidence now offered to be read provides for the width of sidewalks in all streets which “are paved or shall hereafter be paved or repaved ” between the line of the streets and kennels, and declares that .in all streets sixty feet wide, the sidewalk shall be of the width of fifteen feet, and in streets of less or greater width, that the sidewalks shall be of a different width. The provision referred to could not be applied in the case at bar until the court is informed by sufficient evidence that Thirty-sixth street, between Third and Lexington avenues, was actually paved before this action was commenced; what the. width of said street actually was, and where the kennels were located.

How can it be determined that the ordinance applied, without evidence to show that these conditions were complied with ? Who can tell the width of the sidewalk until the width of the street is shown? As there was no proof of these material facts, the evidence in question would be of no avail .to the plaintiff. As to the certificate of the superintendent of street improvements, it may also be remarked that there is no authority cited which renders it competent evidence.

For the reasons already stated, the reading of the ordinance and the certificate upon the argument at the general term and upon this appeal, would be unimportant and would not aid the plaintiff’s case, for as we have seen, neither of them could affect the merits or obviate the defect in the plaintiff’s testimony. But even if they were otherwise competent, the omission to introduce them upon the trial cannot be supplied by their presentation to the appellate tribunal upon the argument of the case, and the rule which sanctions the introduction of record evidence upon an appeal, has no application to the ordinances of a municipal corporation, and a certificate of the character of the one presented under the circumstances of this case. None of the authorities cited sustain the position that such papers may be read upon the hearing of an appeal, and it is usually in cases where record evidence has been imperfectly proved on the trial, or where it is evident that the record itself cannot be contradicted or varied, so that a new trial would not alter the case, that such record can be read to supply the deficiency, and then only in support of the judgment.

In Stilwell v. Carpenter (62 N. Y. 639), it was held, that while records are sometimes received on argument in an appellate court to cover an omission through inadvertence of proof on the trial, this is only permitted to uphold the judgment, not to reverse it, as a reversal is only for error committed below, and there can be no error in deciding contrary to a record not produced. This case is directly in point, and decisive of the question discussed.

The provision of Laws of 1832, chap. 158, which authorizes ordinances of the common council of the city of New York to be read in evidence in all courts, relates to their introduction upon a trial in the various courts, and not to their being in an appellate tribunal. In any view which may be taken of the subject, we think it is entirely plain that the papers mentioned could not upon any legal ground be read upon the argument. As the case stood, the several requests to the court to find by the appellant’s counsel were not material, and the refusal of the judge in regard to them was not erroneous.

The conclusions arrived at in reference to each of the questions considered, dispose of the whole case, and in that aspect it is not important to consider some other points madé, to which our attention has been directed.

There was no error upon the trial, and the judgment must be affirmed.

All the judges concurred.  