
    Taylor v. Village of Mount Vernon.
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    Municipal Corporations—Defective Streets.
    Plaintiff, passing at nigffit along a sidewalk in an incorporated village, left it, intentionally, and stepped into an excavation on the adjoining land, eight feet from the inside of the sidewalk, and four feet inside the stoop line of the houses on the street. The land was on the same grade as the sidewalk, and the excavation had been recently made for a cellar; and there were no lights or guard-rail to indicate danger. No notice to the officers of the village was shown other than notice to a policeman, who immediately notified the owner to guard the excavation. Held, that the village was not liable to plaintiff for his injuries from the fall. .Distinguishing Jenwhurst v. City of Syracuse, 108 N. Y. 303,15 N. E. Rep. 409; Ivory v. Town of Deerpark, 116 N. Y. 476, 33 N. E. Rep. 1080.
    Appeal from judgment on report of referee.
    Action by Thomas Taylor against the village of Mount Vernon, for damages for personal injuries. From a judgment for plaintiff entered on the report of a referee appointed by consent, defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Joseph S. Wood, for appellant. Eugene Archer, for respondent.
   Barnard, P. J.

An owner of lands in the village of Mount Vernon had excavated a cellar thereon flush with the street. There were no lights, and no guard-rail placed at the excavation to indicate the danger of leaving the sidewalk. The lots were naturally on the grade of the sidewalk. The plaintiff on the 15th of October, 1887, stepped from the sidewalk into the excavation, and was injured. The excavation was four feet inside of the stoop line of the house on the street. The sidewalk had a flag-walk, the inside of which was eight feet from the excavation. The excavation did not encroach on the sidewalk, and had not caved in so as to diminish the sidewalk. The plaintiff intentionally left the sidewalk for hi’s own purpose, and thus stepped into the excavation. The sidewalk itself was not out of repair. Under this state of facts, the village owed no duty in respect to the excavation. It had been recently made as a cellar for a new building. It was entirely off the street. No notice is proven to any of the city officers. The only notice shown was to a police officer on the day preceding the accident, and he at,once notified the-owner to guard his excavation. Whether he was liable for neglect, under the case of Beck v. Carter, 68 N. Y. 283, is doubtful. The facts of that case show an invitation to use the place excavated as a highway by the owner, and the case seems to have been decided on that ground against the owner. The-place excavated was not an exposed place, under Hubbell v. City of Yonkers, 104 N. Y. 434,10 N. E. Rep. 858. It is immaterial whether the excavation was made below the sidewalk, and entirely on the owner’s land, or whether the danger bb caused by the building of the road by an embankment. Where-commissioners failed to erect a fence along a bank, sufficient to prevent persons using the highway from walking down the declivity, the court of appeals-say: “We are of the opinion that the town owed no duty to the traveling public to erect such fence, and that it was not negligence on its part, or that of its highway commissioners, to omit to do so.” Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. Rep. 268. The case is not like Jewhurst v. City of Syracuse, 108 N. Y. 303, 15 N. E. Rep. 409, where there was no visible boundary of the street, and the accident happened upon a part of an owner’s land used as a street. The plaintiff did not in this case suppose he was-using the street, but was departing from it. In Ivory v. Town of Deerpark, 116 N. Y. 476, 22 N. E. Rep. 1080, the highway had been cut away by a railroad, and the exposed place was not guarded. The cut was at the end of a sharp curve, so that, if the traveler continued in the course of the highway, he must be precipitated down the bank. The facts found in the present casa fail to show any negligence upon the part of the defendant. The judgment should therefore be reversed, and a new trial granted at circuit, costs to abida event.  