
    Moritz Gluck, Adm’r, Resp’t, v. The Ridgewood Ice Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890).
    
    1. Negligence—Liability oe lessee oe public pibe.
    
      A lessee of a public pier in the city of New York who allows a hole to remain therein for a long period of time is guilty of negligence and is liable for injuries caused thereby to persons passing over the pier.
    2. Same.
    A public pier in the city of New York is a part of the public streets and the public have a right to enter upon it in the same manner as upon the streets and cannot be considered trespassers in so doing.
    Appeal from judgment entered upon verdict rendered after trial at circuit and from order denying motion for new trial
    
      S. D. Morris, for app'lt; A. Stechler, for resp’t.
   Yan runt, P. J.

This action was brought to recover damages alleged to have been sustained by reason of the falling of one-H. G-luclc through a pier leased and occupied by the defendant.

It was claimed upon the part of the plaintiff upon the trial that there had been left a hole in the pier through which the deceased fell.

The defendants upon this appeal claimed that no recovery should have been had against them because they owed no duty to the deceased and secondly because he did not fall through the pier but fell over the string-piece of the pier into the river.

It would be undoubtedly true, were the pier in question to be-considered as the private property of the defendants, no recovery could be had because the deceased was not upon the pier at the invitation or request of the defendants. But it seems to be reasonably well settled that a public pier in the city of ¡New York is a part and parcel of its public streets and that the defendants have not the right to the exclusive use thereof, but that the public have also the right to enter upon such pier in the same manner as they have a right to enter upon and pass over the public streets, of the city.

A large number of cases has been cited by the counsel for the-appellant tending to show that the owner of land owes no duty to a person who comes upon it without his permission and who is thereby a trespasser. But in the case at bar the deceased was not. a trespasser in coming upon this pier, because, as already stated, it. is part and parcel of the public street. He was entitled to passover the same and to assume that it was in such condition that he could safely do so.

If, therefore, this accident happened in the manner in which it was claimed upon the part of the plaintiff, namely, because of a. hole existing in this pier which remained there for a long period of time and which the defendants, the lessees of the pier, had failed to render safe, a recovery could certainly be had.

The only other point raised upon this appeal is as to the weight of evidence. It is claimed upon the part of the defendant that the hole in question was so small that it was not possible for the deceased to have fallen through it, but that the accident actually happened because he was running upon the string piece of the pier and slipped and fell over into the water.

The conflict of testimony between the witnesses upon the-part of the plaintiff and the defendant upon this point is undoubtedly exceedingly sharp. But there was evidence tending directly to establish the fact that the deceased did so fall through this hole, and thereby met his death.

Two of the witnesses upon the part of the plaintiff swore that-they saw him go through the hole, and they were in a position from which they could certainly determine whether he went-through the hole or over the string-piece. Another witness swore that although he did not see him go through the hole, he did not go over the string-piece; and another, that after he had fallen into the water, he saw him going out from under the dock, being carried by the tide, which could not have been the case had he fallen, over the string-piece

Various witnesses were examined upon the part of the defendant for the purpose of showing that the boy was running along the string-piece and slipped and fell. This conflict of testimony left the issue for the jury to determine, and with their finding this court cannot interfere.

It is also to be borne in mind that the testimony showed that a large number of people were sitting upon this string-piece at various points. It is somewhat difficult to see how, in view of this fact, the boy could have been running along the string-piece when he met with the accident by which he lost his life.

If the jury had found this question of fact in favor of the defendants we could not have disturbed their finding. But there was evidence by which they might find that the deceased met his death by falling through this hole, and if he did, then the allowing of a hole to remain in this pier was a negligent act on the part of the defendants, for which they were liable.

The judgment and order appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.  