
    Peter E. Hart, Appellant, v. Mary A. McKenna, Respondent.
    
      JfegVigence—injury from stepping into a coal hole— liability of the owner, who had moved out of the house while repairs were being made by a contractor—presumption after twenty years that the coal hole was authorized.
    
    A woman having a life estate in a house and lot, in the sidewalk in front of which there had been maintained for upwards of twenty years a coal hole covered by an iron cap fastened from the inside with a chain and bolt, entered into a contract with one Olsen for the repairing and remodeling of the house. She moved out of the house for the sole purpose of enabling the repairs to he made, but, before doing so, ascertained by personal inspection that the cover of the coal hole was properly fastened. During the progress of the repairs . the contractor used the coal hole for the purpose of taking materials from the street into the basement of the house. On one occasion, after such User, he neglected to properly fasten the cover of the coal hole,. in consequence of which the cover came off when stepped upon by a pedestrian, causing the pedestrian to sustain personal injuries. The life tenant had no knowledge of the contractor’s use of the coal hole, and during the progress of the repairs made no inspection or examination of the cover of the coal hole to ascertain whether it was fastened.
    
      Held, that it could not be said, as matter of law, that the life tenant was not liable for the injuries sustained by the pedestrian;
    That the coal hole having existed for more than twenty years, it would be presumed that it was constructed and maintained in the sidewalk by permission of the proper authorities; '
    That the privilege enjoyed by the; life tenant of maintaining the coal hole carried with it the special duty of keeping such coal hole in a safe condition;
    That the possession given by the life tenant to the contractor did not relieve the life tenant from the duty, during the progress of the repairs, of using reasonable diligence to keep the coal hole and its cover in a suitable and safe condition for the public to walk upon as part of the sidewalk;
    That the' question whether the life tenant did or did not exercise the required ■ degree of diligence was one of fact for the jury.
    Appeal by the plaintiff, Peter E. Hart, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      William J. Martin [John F. Foley with him on the brief], for the appellant.
    
      James A. Delehanty.[Thomas C. O'Sullivan with him on the brief], for the respondent.
   Rich, J.:

The evidence is uncontradicted, and the appeal presents for our consideration questions of law only. James McKenna in his lifetime was the owner of the premises No. 59 Skillman street, in the borough of Brooklyn. In the sidewalk in front of the house erected on the premises was a coal hole or chute, covered by an iron cap from eighteen to twenty inches in diameter, fastened from the inside with a chain and rope, the chain being a permanent attachment fastened to the cover. McKenna died in 1884, the owner of said property, leaving a last will and testament, thereafter duly' admitted to probate, in and by which he devised to the defendant, Ms widow, all of Ms estate, both real and personal, to collect the rents, issues and profits thereof during her natural life and apply the same to the support of herself and the children of the testator, and upon her death all of the estate to Ms children, share and share alike. After the death of her husband the defendant and her children occupied the premises in question as a residence down to November, 1894,' when she entered into a contract with one Olsen for the repairing and remodeling of the building and moved out. Before moving, however, she ascertained by personal inspection that the coal hole cover was properly fastened from the inside. Her attention was not directed to the cover while the repairs were being made, and she had no knowledge that it had been opened or used by Olsen. She passed by the premises several times while the work was in progress, but had no recollection of seeing the coal hole open or in use on such occasions. The contractor furnished all materials and labor required, and defendant had nothing to do with the work from the time she vacated the building until it was completed ; she did not advise or direct the work in any way. Work under the contract was commenced in December, 1894, and finished in the early part of June, 1895. The contractor used the coal hole during the progress of the work to put materials through into the cellar for .use on the building, and maintained .a pile of materials on portions of the sidewalk.

At about six o’clock on the evening of April 12, 1895, the evidence tends to show that the cover of the coal hole was unfastened and out of place, leaving the hole partly uncovered. At half-past eleven on the same night plaintiff left his home to go to his work. As he passed over the walk in front of defendant’s premises his foot .came in contact with the cover of the coal hole, which came off and Ms foot and leg went into the hole, and lie received the in jury complained of, for which this action was brought. An immediate examination of the place.revealed the fact that the cover was loose .and unfastened; there was no chain attached to it; one end of a rope eighteen to twenty'inches long was attached, which was old,, decayed and frayed on the ends.

This action is based upon the alleged negligence of defendant,, the complaint alleging that the injury was sustained “ by reason of a cover upon said coal hole being left carelessly and negligently; unfastened or secured by the defendant or her servants,” and, again,. “ that said injuries arose * * * wholly through the carelessness and negligence of the defendant or her servants in leaving or permitting the cover of the coal hole in said public sidewalk to be. unfastened and unguarded,” etc. At the close of the evidence-defendant’s counsel 'moved to dismiss the complaint upon the single: ground “ that this work that was done there was done under and through an independent' contractor who had the sole control, possession and occupation .of' these premises at the 'time, of the alleged accident, and that the defendant had no- control over the same and owed no duty in reference to the same.” The court granted the= motion, and the plaintiff duly excepted.

The cbrrectness of this ruling is the main question presented for consideration, and the proposition it involves may be stated in the form bf a question, as follows : Is the owner of real property, in the sidewalk in front of which a coal hole has been constructed and maintained-for more than twenty years, for her private use and convenience, in no manner connected with the public use of the street; or sidewalk, who has the building on such property repaired and remodeled by a contractor who furnishes all materials and labor required, the owner vacating the building for the sole purpose of enabling such repairs to be made, leaving the -coal hole in a safe and proper condition, and thereafter and during the progress of the work makes no personal use of the coal hole and. has no knowledge of its user by the contractor and makes no inspection or examination, of it or its cover and no effort to ascertain its actual condition, free from liability as matter of law, for the negligent acts of the contractor in the user of such coal hole for getting materials from the street into.the basement of the building for use in making the repairs contracted for, whose neglect to properly fasten the cover of such coal hole after such user renders the sidewalk defective and dangerous and results in ah injury to -a person lawfully passing over it with due care, and free from contributory negligence, in the. absence of knowledge or notice to the owner of such user and of its unsafe and defective condition resulting therefrom? I cannot answer this question in the affirmative. We must assume that the coal hole, having existed for more than twenty years, was constructed and maintained in the sidewalk by lawful authority, that is, by permission of the proper authorities. (Trustees of Canandaigua v. Foster, 156 N. Y. 354, 358.) It was an obstruction interfering with the user of the sidewalk by the public and with the rights of the public (Clifford v. Dam, 81 N. Y. 52), and liable at any time through negligence in properly securing and fastening the cover to cause injury to persons lawfully using and passing over the sidewalk. The contractor did not create the obstruction. It existed on the property when he commenced work under his contract and was an instrumentality made use of by him to get his materials from the street into the building to be repaired. His use of it was connected with making the repairs and doing the work contracted for by defendant. His negligence was in the maintenance and restoration of the coal hole after use, not its construction, and consisted of a failure to guard and protect the rights of the public by omitting to fasten or secure the cover so that it would not, on contact with the foot of a pedestrian, fly off and result in injuries similar to those sustained by the plaintiff. This duty rested upon the .defendant, who had' acquired a special privilege, acceptance and enjoyment of which had charged her with the special duty to the public of maintaining the coal hole at all times in a safe condition and properly guarded; she could not avail herself of this privilege without discharging the duty; the two were at all times coexistent and she could not absolve herself from the liability thus created by delegating the performance of the duty to another. (Downey v. Low, 22 App. Div. 460.) This doctrine was reasserted and followed in Mullins v. Siegel-Coober Co. (95 App. Div. 234). There is no evidence that the defendant gave her contractor any possession of the coal hole or sidewalk. If, as claimed by counsel, the contractor was in such possession by her act, it necessarily follows that she gave him such possession for the purpose of using the coal hole in the manner he did, for he needed possession and could use it for no other purpose. It cannot be said that this user was hot within the fair contemplation of the parties in making the contract. (Johnston v. Phoenix Bridge Co., 44 App. Div. 581.) In Weber v. Buffalo Railway Co. (20 App. Div. 292, 300) - the law applicable to a .similar case is declared by the Appellate Division of the fourth department to be: ■“A duty was imposed by law upon the defendant towards- the plaintiff, as one of the public, not to interfere with the right which the plaintiff possessed of using a public highway in such a manner 'as to impede or injure him when passing along it. The defendant is liable for the breach of the duty thus imposed upon him, although the act or default which caused the injury may have been the .act or default of the defendant’s contractor • and not of defendant itself. The negligent act or omission, if established, constituted an unlawful invasion of the plaintiff’s right of transit over the public highway. It appears clear enough to us that, under the circumstances of this case, a duty was imposed upon the defendant which it could ■not-evade by employing a contractor to do the work. It could not get. rid of the responsibility thus cast upon it by transferring that duty to another. It was not competent to get lid of such a duty by imposing it upon an independent contractor.” (See, also, Anderson v. Caulfield, 60 App. Div. 560; Schiverea v. Brooklyn Heights R. R. Co., 89 id. .340; Trustees of Canandaigua v. Foster, supra, 361.) The defendant was in such possession of the premises during the time they were being repaired as to render her liable as the owner for the negligence of the contractor in the- use of the ■coal hole. She is not shown to have parted with any possession of the premises by her contract with Olsen or in any other manner except such as impliedly results from the contractor’s necessary right to enter upon the premises to make the repairs and alterations ■provided for by the contract, This implied right does not extend to either the coal hole or the sidewalk, for no necessity existed for the use of either. The lot upon which -the building stood,, outside of that covered by the -building, was clearly in her possession, and the right acquired by the contractor to enter and. possess, so far as necessary, the building for the purpose of making the repairs does not divest the owner of possession (where, as in this case, she vacates the building on the premises temporarily and for the sole purpose of enabling him to do the work) to such an extent as to relieve her of liability upon the ground that she' was not in. possession. The possession of the contractor under such circumstances is not equivalent to the possession acquired when property is alienated or leased and occupied by the grantee or lessee," nor is it such as relieved the defendant owner from the duty and obligation, which attaches to and goes with the land, of inspection and repair of the coal hole and cover while the work- was in progress, which the law imposed on her for the public safety. The duty resting upon an owner of real property under such circumstances is exhaustively discussed in Trustees of Canandaigua, v. Foster (supra), which is an authority for holding that the defendant was not relieved of the duty of using reasonable diligence to keep the coal hole and its cover in a suitable and safe condition for the public to walk over as part of the sidewalk, while the repairs and alterations on her building were being made by her contractor Olsen, and the question of whether she did or did not exercise such diligence as the law required under the circumstances was a question for the jury.

• The judgment appealed from must, therefore, be reversed and a new trial granted, costs to abide the result.

Hirschberg, P. J., Bartlett and Woodward, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  