
    Thomas Taylor, Resp’t, v. The Village of Mount Vernon, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed Dec. 8, 1890.)
    
    Municlpal corporations—Negligence—Excavations on lots adjoining sidewalk.
    An owner of lands made an excavation on Ms lands witMn the stoop line thereof and eight feet from the sidewalk, and placed no guards or lights about it. Plaintiff, while walking by, intentionally left the sidewalk and stepped into the excavation. The sidewalk was not out of repair. The only notice of the excavation was to a police officer the day before and he notified the owner to guard it. Reid, that the village was not chargeable with negligence.
    Appeal from judgment in favor of plaintiff, entered on tne report of a referee.
    Action to recover damages for personal injuries.
    
      Joseph S. Wood, for app’lt; Eugene Archer, for resp’t.
   Barnard, P. J.

An owner of lands in the village of Mt. 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 his own purpose and thus stepped into the excavation. The sidewalk itself was not out pf 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. The City of Yonkers, 104 N. Y., 434; 5 N. Y. State Rep., 730. It is immaterial whether the excavation was made below the sidewalk and entirely on, the owner’s land or whether the danger be caused by the building of the road by a steep 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; 6 N. Y. State Rep., 484.

The case is not like Jewhurst v. City of Syracuse, 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. The Town of Deerpark, 116 N. Y., 476; 27 N. Y. State Rep., 643, 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 case 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 abide event.

Btkman and Pratt, JJ., concur.  