
    Charles A. Matthews, an Infant, by Charles N. Matthews, his Guardian ad Litem, Respondent, v. The City of New York and James Dugan, Appellants.
    
      Loose cover of a coal hole in a sidewalk, the beveled edges of which are worn away — liability of the owner to one injured by its tilting up when xoalked on — when the city is not liable.
    
    In an action brought against the city of New York and the owner of a building-abutting on a public street in that city to recover damages for personal injuries, sustained by the plaintiff while walking along the sidewalk in front of such premises, in consequence of the iron cover of a coal hole situated in the sidewalk tilting up when he stepped upon the edge thereof, it appeared that a few months prior to the accident the defendant owner rented the entire building and the appurtenances to a tenant for a period of three years.
    Evidence was given tending to show that the cover rested on the beveled edge of the hole in the flagstone; that the beveled edge of the stone was so worn that the cover was loose and would readily tip up on pressure from above; that there was no chain attachment under the sidewalk for securing the cover in place, and that shortly prior to the time when the lease of the premises was executed a similar accident had happened.
    The action was brought and tried upon the theory that the defendants were negligent.
    
      Held, that, assuming that the coal hole was constructed by permission of the proper municipal authorities, the evidence was sufficient to charge the defendant owner with negligence;
    That the city was under no obligation, as matter of law, to inspect the under side of the cover for the purpose of discovering whether there were attachments for fastening it from below, and that, as it did not appear that the city had actual notice of the defective condition of the coal hole or that such defective condition was apparent to ordinary observation when the cover of the coal hole was in place, the city could not be held liable.
    Appeal by the defendants, The City of Few York and another, from a judgment of the Supreme Court in favor of the. plaintiff, ■entered in the office of the clerk of the county of New York on the 6th day of June, 1902, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the 4th day of June, 1902, denying the defendants’ motion for a new trial made •upon the minutes.
    
      Terence Farley, for the appellant The City of New York.
    
      John J. Brady, for the appellant Dugan.
    
      John M. Ward, for the respondent.
   Laughlin, J.:

The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendants in suffering a coal hole and the covering thereto in the sidewalk in front of premises No. 1901 Washington avenue in the city of New York to remain in a defective condition dangerous to public travel. The accident occurred at about half-past nine o’clock in the evening of the 2d day of March, 1901. The appellant Dugan was the owner of the abutting premises for the convenience of which the coal hole was constructed. There was a building erected on the premises; and on the first day of December prior to the accident Dugan rented the entire building with appurtenances to a tenant for the period of three years. The tenant used the first floor as a tailor shop. The hole was within three or four feet of the front of the store in the center of a flagstone about four feet square and a little toward the store from the regular line of travel of pedestrians passing along the sidewalk.

The plaintiff was then fifteen years of age. While lawfully ¡massing along the sidewalk he stepped upon the edge of the cover of this coal hole, which the evidence indicates was in place, and it tilted up, so that one edge was above the sidewalk and the other down in the hole,- and let him into the hole astride of the cover, inflicting the injuries of which he complains. The jury upon sufficient evidence have found that the plaintiff was free from contributory negligence and that question need not be considered. The action is for negligence and it was tried upon that theory. The judgment, therefore, must be sustained for negligence, if at all, and cannot be supported on the theory that the condition of the sidewalk constituted a nuisance.

The owner of the premises contends that he is not liable for the-reason that there is no evidence to support a finding that the accident, was owing to a defect which existed at the time he leased and surrendered possession of the premises to his tenant. On this branch of the case the learned counsel for the respective parties do not. seem to differ as to the law applicable. The liability of Dugan depends upon whether this coal hole or cover was in a defective or unsafe condition at the time he parted with possession to his tenant.. This coal -hole was round and about the ordinary size of that class of coal holes. The cover was an iron disk. There is some rather indefinite evidence indicating that this disk rested in an iron rim, but the preponderance of the evidence is to the effect that there was no iron rim and that the hole was made in the stone, the edges being beveled off so that the cover fitted into the stone resting on this beveled edge. In the month of June, before the accident, the building was raised and the sidewalk in front was also raised about eight inches.. The testimony of the mason who changed the grade of the walk was to the effect that, when he finished the work, the cover rested in the stone in such manner that it could be made fast below by a, hook and chain so that it could not be moved. He also testified, that if a man stepped on this cover it would not turn “ even though it were loose,” and that there was no appliance attached to the cover to prevent its sliding or moving other than the chain. The tenant testified that he was in the cellar and under this coal hole to get coal two or three days before the accident and observed that “ there was. a chain attached to that coal.cover, the same chain as there is to-day,, with iron hooks; it was fastened to the coal cover; it was also-driven into a wall where the chain is fastened. * * * I saw the chain there, fastened properly, the way it ought to be. * * * I did not see it slip ; I never saw the coal hole slip.” It was also-shown that a week or ten days prior to the Thanksgiving preceding the time when Dugan’s tenant went into possession, a girl fifteen years of age met with a similar accident by stepping on the-cover to this coal hole. There was positive testimony of witnesses-who examined the cover to this coal hole immediately after the. accident that there was no chain attachment to hold it in place, and. that the beveled edges of the stone in which the cover rested were so worn that the cover was loose and would slide and readily tip up on pressure from above. The owner of the premises, while in possession thereof, was chargeable with knowledge of the method of construction of this coal hole, cover and attachments, and with their condition. It is significant that he was not sworn as a witness in his own behalf. This evidence justified the inference that this coal hole was in a condition dangerous to public travel at the time the owner leased the premises and parted with possession. It was assumed that the coal hole was constructed by permission of the proper municipal authorities, but even so, this evidence was sufficient te charge him with negligence and responsibility for the accident. (Clifford v. Dam, 81 N. Y. 52; Whalen v. Gloucester, 4 Hun, 24.)

It does not necessarily follow, however, that the city was guilty of negligence. There was no evidence of actual notice to the city of the dangerous condition of the coal hole. Its liability depends upon whether it had constructive notice. The city was only chargeable with such knowledge of the method of construction of this coal hole, cover and attachments as would be acquired by properly inspecting the same from the street. (Smith v. Mayor, 15 Wkly. Dig. 103; Hanscom v. City of Boston, 141 Mass. 242.) It was under no obligation as matter of law to inspect the under side of the cover or attachments for fastening it below. There is evidence, as has been stated, indicating that the beveled edges of the stone in which the cover rested were badly worn so that the cover was loose, but that testimony was given by witnesses who inspected the coal hole with the cover both on and off, and it does not satisfactorily indicate that with the cover in place it would be apparent from ordinary inspection that the stone was worn or the cover loose. Ho. witness testified specifically that with the cover in place it was apparent by ordinary observation that the stone was worn or that the cover was loose. One witness, however, did testify that immediately after the accident he put the cover in place and that it. tilted up of its own accord, which, if true, would be some evidence that the hole at that time was too large for the cover. It is not probable, however, that the coal hole had been for any great length of time in such a condition that the cover would tilt of its own accord, or such condition would have been observed by others passing along the walk or in or out of the tenant’s store. This testimony of this witness is also in conflict with that of an inspector and several policemen, who say it did not tip up when they stepped upon it shortly before the accident. We are of opinion, therefore, that the verdict is against the weight of the evidence as to the city’s negligence, and that its motion for a new trial upon that ground should have been' granted.

It follows that the judgment and order should be affirmed, with costs as against the appellant Dugan, but should be reversed and a new trial granted as to the city, with costs to appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs as to the appellant Dugan, and reversed and a new trial ordered as to the city of New York, with costs to appellant to abide event.  