
    Fisher v. Rankin.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    1. Negligence—Pleading—Nuisance.
    In an action for personal injuries the second paragraph of the complaint charged a trespass in maintaining without lawful right an unsafe sidewalk in the street of a city. The third paragraph alleged that the injuries were caused wholly by the carelessness and negligence of defendant in permitting the sidewalk to remain in an unsafe and dangerous condition. The evidence showed that at the time of the accident the sidewalk was being improved and relaid by defendant opposite his lots, but without any permit from the city. Held, that the cause of action was not for carelessly maintaining in an unsafe condition a sidewalk authorized by the city to be relaid, but was rather for an unwarranted and unlawful obstruction to free passage, and that recovery might be had as for a nuisance.
    2. Pleading—Variance—Waives.
    Defendant claimed that there was a variance between the complaint and the evidence, whereupon the court gave him an opportunity to make an affidavit of surprise, stating at the same time that, if such affidavit were made a juror would be withdrawn and the case go over the term, but defendant declined to do so. Held, that he could not complain of the variance.
    Appeal from circuit court, Yew York county.
    This was an action for damages for personal injuries, brought by Elizabeth Fisher against William Rankin. The complaint was as follows: “The complaint of the plaintiff respectfully shows: (1) On information and belief, that the defendant was at the times hereinafter mentioned in possession, had control, and was the owner, of the building and premises known as Yo. 455 West Forty-Eighth street, in the city of Yew York, which building was in the course of erection. (2) That on or about the 15th day of July, 1884, the plaintiff was lawfully passing on the sidewalk in Forty-Eighth street, in front of the premises aforesaid, the same being a public thoroughfare. That while in the act of passing as aforesaid, she stepped upon a flagstone placed on said sidewalk, when the said stone suddenly gave way from under her feet, and plaintiff was thereby violently precipitated to the ground, whereby she was severely cut, bruised, and wounded in various parts of her body, her thighbone was dislocated, and she suffered other severe and painful injuries, all of which have caused her great suffering and anguish, and have put her to great expense for the attendance of a physician and for medicines for the attempted cure thereof. The plaintiff is still confined to her home, and is likely to be so confined for a long time to come, and is informed and believes that her injuries are permanent, and that she will never be restored to her former state of vigor and health, all to her damage ten thousand dollars. (3) That the said injuries were caused wholly by the carelessness and negligence of the defendant, in that, among other things, he failed to keep the said sidewalk in a safe and proper condition, but, on the contrary, permitted it to be and remain in an unsafe and dangerous state and condition, ail of which the defendant well knew or ought to have known. That this plaintiff did not through any fault or negligence on her part contribute to the said injuries. Wherefore, by reason of the premises, the plaintiff demands judgment against the defendant for the sum of ten thousand dollars, besides the costs of this action.”
    
      Plaintiff had a verdict for $7,000, and from a judgment accordingly, and from an order denying a new trial, defendant appeals.
    Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.
    
      Beyo, Buer <& Bauerdorf, for appellant. Leo C. Bessar, {Christopher Fine, of counsel,) for respondent.
   Macomber, J.

The action is brought to recover damages for injuries received by the plaintiff by reason of a fall on the sidewalk on Forty-Eighth street, near the north-east corner of Tenth avenue, New York city. At the time the personal injuries were received by the plaintiff, namely, the 15th day of July, 1884, the defendant was the owner and in possession of the land and buildings between, Forty-Eighth and Forty-Ninth streets, on Tenth avenue, running back a distance of 80 feet on each of said streets. After building eight houses thereon, the defendant proceeded, through contractors, to make a new pavement of asphalt along Forty-Eighth street. The method adopted for this purpose was the removal of the soil to a proper depth, and them to place at the bottom coal, ashes, and cinders wetted and rammed down to a proper thickness. On the top of this was placed a layer of cement and gravel or small stones, which formed the surface of the pavement. During the concreting of the inside half of the sidewalk the outer half was left open to the public. After the inside half was ready for use it was opened to the public, and the outside half completed. Between 9 and 10 o’ clock of the evening of July 15, 1884, the plaintiff, who was a woman 64 years of age, was injured at the place indicated, and suffered thereby an inter-capsula fracture of the upper end of the hip-bone. The testimony in behalf of the plaintiff tended to show that the transit from that portion of the sidewalk already erected to the excavated portion thereof was abrupt and precipitous, being a distance ranging, according to the testimony of the several witnesses, from seven to fourteen inches, from a smooth to a rough and ragged surface composed of broken stones and loose ashes. The evidence in behalf of the defendant tended to show that the descent from the adjacent portion of the completed walk to the unimproved and excavated portion thereof was beveled off at an easy grade of half an inch to the foot, and consequently was not dangerous to pedestrians. Under this conflict of evidence, which appears in detail in the ease, the verdict of the jury, which was based upon the testimony of credible witnesses, ought not to be disturbed, unless at the trial some errors were committed which affected such verdict to the detriment of the defendant. The learned counsel for the appellant argues that it was error for the trial judge to receive the evidence as to the nature of the injuries, because they varied from the allegations of the complaint. The medical testimony showed that the plaintiff had sustained a fracture of the right hip, termed -by the profession an inter-capsula fracture; that is to say, a fracture in the Capsula of the hip-joint. The complaint alleges that the plaintiff was severely “cut, bruised, and wounded in various parts of her body, her thigh-bone was dislocated, and she suffered other severe and painful injuries.” Clearly this is not a variance between the pleadings and the proof, which required any action to be taken on the part of the court by way of amending the complaint or otherwise. But, even if it were such a variance, the defendant was offered, when objection was made, an ample opportunity to make his affidavit of surprise if he could do so, with a ruling by the court that, if such affidavit were made, a juror would be withdrawn, and the case go over the term, to enable the defendant to meet what he claimed to be this variance between the allegation and the proof. Such suggestion, however, was declined by the learned counsel for the defendant. His exception to the ruling of the court, under these circumstances, is of no avail.

It is also argued in behalf of the appellant that, inasmuch as the recovery was based upon the proof of the maintenance by the defendant of a nuisance, the verdict should be set aside, because the allegations of the complaint were based upon the alleged negligence of the defendant in maintaining the sidewalk in an unsafe condition. The second paragraph of the complaint, standing alone, would constitute a complaint for trespass in maintaining without lawful right an unsafe sidewalk in the city of New York. While it is true that the third paragraph thereof says that the injuries were caused wholly by the carelessness and negligence of the defendant, yet it does not appear to us that the plaintiff could not maintain her action without showing the negligent maintenance of the condition of the street while engaged in making proper repairs to the sidewalk under municipal permission. The case of Dickinson v. Mayor, etc., 92 N. Y. 584, is relied upon by the defendant’s counsel as determining that under these allegations of the complaint a recovery could not be had for maintaining a nuisance. That case, however, cannot be used for any such purpose. That decision is only to the effect that a complaint alleging that the defendant improperly, carelessly, negligently, and unlawfully suffered ice and snow to be and remain upon the cross-walk at an intersection of two streets in the city of New York was to recover damages for personal injuries resulting from negligence, and that the time limited for the commencement of such an action was, under the Code of Civil Procedure, three years. In that case there was no active part taken by the defendant in producing the accumulation of ice which caused the injury. In the case before us, however, it is shown that buildings were constructed by the defendant for his own benefit, and that the sidewalks were improved by him, through the instrumentality of contractors, it is true, but without any permit for the change granted by the municipal authorities. The cause of action, therefore, was not for carelessly maintaining in an unsafe condition a sidewalk which was authorized by the city authorities to be relaid, but was rather for an unwarranted and unlawful obstruction to the free passage upon the sidewalk. The case of Clifford v. Dan, 81 N. Y. 52, is an authority sustaining the rulings of the court on this trial, and warranting a recovery of damages. There it is held that the public is entitled to an unobstructed passage upon the streets, including the sidewalks of the city, and that an unauthorized obstruction gave a right of action to a party injured, without placing upon him the necessity of proving actual negligence upon the part of the defendant in maintaining and guarding the obstruction. In the case at bar, had it proceeded upon the assumption of a lawful improvement negligently carried out, a different question would undoubtedly arise. Moreover, the defendant is not in a position to complain under the complaint—the principal allegations of which are above stated—that he was misled upon the trial in any particular. The charge was clearly made in the complaint of an injury by reason of an unlawful obstruction in the sidewalk adjacent to the defendant’s premises, which the law required him to maintain in a reasonably safe condition. Sufficient proof was adduced to establish that allegation, and the defendant had no right to complain that the plaintiff did not go further and show, an actual negligent maintenance of this obstruction. The amount of the verdict, though liberal, does not seem to be excessive within the rules governing such cases and the numerous precedents of this court. The other objections and exceptions to a recovery by the plaintiff have been examined in detail, and we do not find in them anything which would lead to a reversal of the judgment, or which requires special comment. The judgment should be affirmed, with costs. All concur.  