
    Mary Mansfield, Appellant, v. The City of New York, Respondent.
    First Department,
    May 17, 1907..
    Negligence — injury by fall of awning — when municipality liable — evidence — prior inspection by city.
    A wooden awning extending over a street in the city of New York which is supported by wooden pillars so placed that they are'knocked down by a passing-vehicle.is a nuisance and the municipality }s liable for injuries received by the fall thereof.
    If the city authorizes such structure it is guilty of maintaining a nuisance; if it permits it to exist for many years without authorization, it is charged with notice;-and in either event is liable. ■
    A city has no power to grant to an individual any right in the streets which will interfere in any degree with the safe use by the public and cannot authorize ' the maintenance of awnings which by their construction are a nuisance on the public thoroughfare.
    When a city has allowed the maintenance of such awning for sixteen years, during which time it has decayed and there have been no substantial repairs, it is error to dismiss the complaint' of one injured by .the fall of the awning, for the jury should say whether the city has - performed its duty in failing to inspect the awning. .
    It is error to exclude evidence that sixor seven years prior to the accident the awning had been inspected by the municipality and pronounced to be in poor condition.
    When a structure or machine is shown to have been out of repair, there is no presumption by mere lapse of time that repairs have been made.
    Appeal by the plaintiff, Mary Mansfield, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of February, 1907, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the lltli day of February, 1907, denying the plaintiff’s motion, for a new trial made upon the minutes. -
    
      Frank M. Hardenbrook, for the appellant.
    
      Theodoi'e Gonnoly, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for personal injuries, The complaint was dismissedát the close óf plaintiff’s Case and she has appealed. The evidence offered by her tended to show, and would have justified the jury in finding, that on the 12th Of September, 1903,between nine-and ten o’clock in the morning, the plaintiff, . while standing on the sidewalk in front of á building situate at the'northwest corner of Houston and Varick streets in the city of Hew . York, was injured by a wooden shed; or awning, which extended from this building to the outer edge of the sidewalk, falling upon her;- that the awning, which'was covered with tin, was' supported ■ by four wooden posts set in the sidewyalk at the edge, of the Curb-. • . stone-r— two fronting on Houston and. two on Varick. street-— and - was secured to the building by nails driven through the tin where sitch .awning' and -building, joined ; that one of the posts was so placed that the hub of a wheel on a truck going south on Yarick street struck and. broke it, when the whole-structure collapsed, causing the in juries of-which plaintiff complains.. '.

' The evidence would-also-have -justified a finding that the awning was constructed some fifteen or .sixteen years before and that the post which was broken was decayed to such an extent- that a piece of -it crumbled in the hand of a person who picked it up ; that it had ¡not been repaired since constructed* except that one post which was broken about a year before by a truck colliding with it was replaced; and that .shine portion of it. had been -painted and Some of ■ the tin repaired. .' '.

The plaintiff endeavored to prove that some, six or seven years prior to the accident the awning had been inspected by 'an inspector of the bureau of incumbrances, and by him pronounced in a “ very, poor condition:” This proof, was objected to by- defendant and the objection sustained, upon the ground that showing the condition seven years before the accident was too remote. .

The complaint haying been dismissed at. the close of plaintiff’s . casé, she isérititled to the most favorable inferences to be fairly and legitimately drawn from the evidence. (Higgins v. Eagleton, 155 N. Y. 466 ; McDonald v .Metropolitan St. R. Co., 167 id. 66.)

The plaintiff’s contention - is that the..awning was'an unlawful ■encroachment .upon the public..street, obviously dangerous to travelers, and a nuisance which it was the duty of the city to remove; while defendant’s contention, as I understand it, is that the awning was not a nuisance, but at most a defect in the street .for which the city could only be made liable , after actual or constructive notice. It seems to me it is a matter of little or no importance, so far as the present appeal is concerned, which contention • be adopted as the correct one, because in either view the court erred in dismissing the complaint.

First. The structure may be regarded as a nuisance. A portion of it was placed in or so near the traveled part of the street that it was knocked down by a passing truck. This was an improper use of the street, and if. the city authorized it, it was itself maintaining a nuisance so long as the obstruction continued, and if it did not, it was permitting the nuisance because it had existed so long it was bound to take notice of it. (Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532.) If it be true, as contended by counsel for the defendant, that a presumption prevails, in view of the length of time the awning had existed,, that it was constructed under lawful authority, this does not aid the defendant, The presumption in that event is not that the owner acquired any right to the use of the street, but that from-such use the consent of the city was given. The city had no power to grant, to an individual any right in the street which would interfere in any degree with its ¡safe use by the public. The right of the public to the use of the street is absolute and paramount to any other. (Deshong v. City of New York, 176 N. Y. 475 ; Ackerman v. True, 175 id. 353.) This structure or a part of it did interfere with the usé of the street by the public, which is conclusively established by the collision which occurred and which caused or contributed to its collapse. The collapse of the structure injured the plaintiff, for which defendant is liable. . ( Wakeman v. Wilbur, 147 N. Y. 657.)

Tli.é case is illustrated by Cohen v. Mayor, etc., of N. Y. (supra). There a grocer was in the habit of keeping his grocery wagon, when not in use, standing day and night in front of his store under a permit from the city for which a license fee was.paid. When so standing the thills wore raised perpendicularly and held up with strings. A passing ice-wagon; struck the.grocery wagon and turned it partially around. The strings holding up the thills gave way ¡and they, came down upon the sidewalk, striking plaintiff’s intestate and inflicting an injury upon him from the'effect of which he died shortly thereafter. In an action to recover damages it was held that the storing of the wagon in the street was a public nuisance ; that defendant, by licensing it, made itself liable for any damage resulting therefrom the same as if it had itself maintained the nuisance, and that • as the accident happened because of the presence of the obstruction it was the proximate cause of the injury. Assuming that there was authority in the city to permit the use of awnings when this one was erected, that authority did not extend to allowing awnings which, in their construction, would be nuisances in public thoroughfares.

Second. If defendant’s contention be correct the court also erred in dismissing the complaint. As already said, the city was bound to keep the streets,, including the sidewalks, in such repair that a person lawfully using them might do so with safety. This awning covered the entire sidewalk in front of the building. . It was constructed some sixteen or seventeen years prior to' the time plaintiff was injured, and since that time substantially no repairs had been put upon it, except to replace the post broken the year before, and the post which broke on the day plaintiff was injured, or some part of it, was so far decayed that it would crumble when picked up. Under such facts the jury would have been justified in finding that the city had not performed its duty, in that it had failed to make an inspection of the condition of the post; that had it done so it would have discovered 'the defect and had such post replaced by a ' stronger and more substantial one, and one which would not give . way by a light truck colliding with it.

This view is sustained by Hume v. Mayor (74 N. Y. 264). There . plaintiff was injured by the fall of a wooden awning, as here, and it was held that such awning, if insecurely supported so as to be dangerous to persons using the street, was a defect in the street which the city was bound to repair; and if the city had notice of the , danger, or it had existed so long that notice might be inferred, then ■ the city was liable for damages resulting from siich defect. In the present case, if the city did not have actual notice of' the defective condition of ibis structure, it had- constructive notice in view of the time which it had existed.

I am also of tlie opinion that the court erred in excludipg evidence tending to show that the awning in question had been inspected by an inspector of the incumbrances bureau some seven years prior to the accident, and by him pronounced in an unsafe condition. Had the plaintiff been permitted to prove this fact, it would' have established — there being no evidence to. the contrary — ' that the awning at the time in question was not only out of repair, but that the city had notice of it. Having shown the awning out of repair, then the burden, was upon the city to show that repairs had thereafter been made and that the defect complained of had been remedied, and in the absence of such proof would have justified the jury in finding that that had not been done. After showing that a structure or machine is out of repair, there is no presumption, by ..mere lapse of time, that repairs have been made. This necessarily follows from the fact that inaction or lapse of time does not remedy defects nor make repairs.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to appellant to abide event.

Patterson, P. J., Houghton, Scott and Lambert, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  