
    Louis Kleinberg, Respondent, v. John Schween, Appellant, Impleaded with Samuel Levin, Defendant.
    First Department,
    November 12, 1909.
    Beal property — excavation on land—fence — duty of landlord.
    An owner of land who makes and maintains a lawful excavation thereon is not bound to fence or guard it for the protection of persons upon adjacent premises not a highway or habitually and notoriously used by the public as a way of passage.
    A landowner is not bound at the common law to fence his land or mark its boundaries, nor is he obliged to make it safe for the benefit of trespassers or licensees coming upon it without invitation.
    A complaint which alleges that defendant constructed on his land an areaway twelve feet deep abutting on the adjoining lot and failed to maintain a guard or rail to prevent people from falling therein, whereby plaintiff while lawfully on the adjoining lot fell into the areaway to his injury, does not state a cause of action when it fails to allege that the adjoining premises were habitually used by the public as a passageway.
    Laughlin, J., dissented.
    Appeal by the defendant, John Schween, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 12th day of July, 1909.
    
      Bertrand L. Pettigrew, for the appellant.
    
      Alfred Steckler, for the respondent.
   Scott, J.:

The defendant John Schween appeals from an order denying bis motion for a judgment upon the pleadings dismissing the complaint as to him.

The complaint shows that the appellant, being the owner of a lot of land in the city of New York, erected thereon a house, and constructed in the rear of said house and adjacent thereto, on his own lot, an opening or areaway about twelve feet deep, twenty-five feet long and three feet wide. This opening or areaway extended to and abutted upon an adjoining lot which belonged to another owner. After the building and area way had been thus constructed, the appellant leased the premises and building to one Samuel Levin, who entered into possession thereof, and was so in the possession when the plaintiff suffered the injury for which he sues. The plaintiff being lawfully upon the adjoining premises in the night time fell into the areaway and suffered certain injuries. It is alleged that the appellant while in possession of the premises prior to the lease to Levin, and both the appellant and said Levin since the lease, have failed and omitted to maintain a guard or rail to protect said area and to prevent persons upon the adjoining property from falling into it, and have also failed and omitted to put proper lights, warnings and safeguards to warn persons lawfully upon the adjoining premises of the existence of said area or opening. It is not alleged that the adjoining lot from which plaintiff fell was a highway or a public place, or an alleyway, or other place generally used for the purpose of passing, or to which the public were in any way invited, nor is it alleged that the lateral support of the adjoining lot was in any way interfered with. Although the complaint freely characterizes appellant’s area way as a trap and a nuisance, the facts stated do not justify the conclusion that it was either, or anything else than a perfectly lawful excavation which appellant was entitled to make and maintain upon his own land. The question in this case is, therefore, a very simple one. It is whether or not the appellant, having constructed and maintained a lawful excavation upon his own land, is bound to fence or guard it for the protection of persons upon adjacent premises, not a highway or a place habitually and notoriously used by the public as a way of passage. It is well settled that he owes no such duty. The owner of land may make an excavation upon his premises and is not bound to fence it for the protection of persons not lawfully upon his land. This is the general rule, and rests upon the right of the owner to use his land as he pleases. (Beck v. Carter, 68 N. Y. 283.) The apparent exception to the rule which relates to excavations adjacent to or near the highway has no application to the case made by the complaint in this action, hior does the complaint present the case of the maintenance by the owner upon his own land of a structure which by its operation or its fall causes injury to a person upon adjoining land. The plaintiff in the present case was in perfect safety so long as he remained upon the adjoining land. It was only when he crossed the boundary line between that land and plaintiff’s land that he fell into danger. Doubtless such crossing was inadvertent. But the owner of land is not bound by the common law to fence his land or in any way mark the boundaries of his possessions (Beck v. Carter, supra), nor is lie under any obligation to make his land safe or to keep it in any particular condition for the benefit of trespassers, intruders, mere volunteers or bare licensees coming upon it without his invitation, express or implied. (Birch v. City of N. Y., 190 N. Y. 397, 403.) In no view of the facts as set forth in the complaint did the appellant owe plaintiff any duty to fence or guard the areaway. Consequently plaintiff cannot recover a judgment for damages. The motion should have been granted, and the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, Clarke and Houghton, J J., concurred; Laughlin, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  