
    BENJAMIN M. STILLWELL, Appellant, v. THE MAYOR, &c. OF NEW YORK, Respondents.
    
      Municipal corporations—liability as to streets.—Bo idenae—ordinances, when ' admissible against city. ,
    
    No cause of action accrues against a municipal corporation, from the mere fact that its officers have neglected their duty in the enforcement of its ordinances, e. g., in regard to the condition of streets and highways.
    In an action for breach of an obligation on the part of a municipal corporation, involving knowledge of certain facts, its ordinances are. competent evidence, when they show such knowledge or notice.
    In an action for damages against the city for alleged negligence in permitting to remain upon the sidewalk an iron vault-cover, having a surface so smooth and slippery that it did not furnish a sure foot-hold for passengers: Held, that ordinances that all vault-covers shall be placed •within twelve inches of the area coping, or within twelve inches of tlie curbstone, and that all sidewalks shall be raised from the curbstone two inches in ten feet, do not of themselves tend to show knowledge on the .part of the city that if the provisions thereof are not observed, there will be danger to passengers of slipping on said vault-cover.
    
      An ordinance directing the removal by certain city officials, of all vault-covers presenting a smooth surface, and the substitution therefor of covers presenting a rough surface and affording a secure foot-hold for pedestrians, etc., -while it tends to show knowledge by the city that there was danger of slipping upon a smooth vault-cover, does not enlarge its legal obligations, and to recover for such cause it is necessary to prove neglect in failing to prevent the maintenance of such a cover. The duty of a municipal corporation as to sidewalks, etc., is to use ordinary care to furnish a reasonably safe place to step upon.
    The evidence in this case considered and held insufficient to prove that the city was negligent in allowing the vault cover to be placed on the sidewalk or to remain there.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    
      Decided December 3, 1883.
    Appeal by plaintiff from judgment in favor of defendant dismissing the complaint, upon the order of the judge at trial term.
    The action was for damages to plaintiff, through the alleged negligence of defendants in permitting to remain in the sidewalk of a street an iron vault-cover having a surface so smooth and slippery that it did not furnish a safe foot-hold for passengers.
    On a stormy day, when half melted snow was upon the vault-cover, the plaintiff, stepped upon it, slipped, fell, and was seriously injured. It was claimed that the defendants were negligent in three respects : First, in permitting the cover to remain in the sidewalk ; second, in allowing it to remain as placed upon a stone, which and the sidewalk itself, had an unsafe pitch towards the curb; third, in-allowing it to remain so far from the curb and from the area coping.
    Further facts appear in the opinion.
    On the trial, the complaint was dismissed.
    
      Stilwell & Swain and Charles P. Miller, for appellant.
    —The iron vault-cover in the street being therein violation of the city ordinances, both as to its position and nature, was an unlawful and unauthorized obstruction in the street. An unlawful and dangerous obstruction in a public street is a nuisance per se (Hume v. Mayor, &c., 74 N. Y. 270; Reich v. Mayor, Com. Pl., 17 Week Dig. 140; Wenzlick v. McCotter, 87 N. Y. 126; Mairs v. Manhattan Ass., 89 Id. 503).
    The defendants are liable for injury received from a nuisance maintained by them (Hume v. Mayor, 74 N. Y. 270; Dillon Mun. Cor. 2d ed. §§ 794, 795, et seq.; 3d ed. § 730, p. 722, note 1). The municipal police are expressly directed by the statute to remove such nuisances or unauthorized obstructions (N. Y. City Consol. Act 1882, § 282; Laws 1864, ch. 403, § 20; Rehberg v. Mayor, &c., 91 N. Y. 137). The police are bound to know the city ordinances prohibiting obstructions, or providing for the safety of the streets ; and for the negligence of the police in failing to remove any obstruction prohibited by ordinance, the defendants are liable (Rehberg v. Mayor, &c., 91 N. Y. 143). It was not necessary that the defendants should know that this vault cover was in fact dangerous (Rehberg v. The Mayor, &c., 91 N. Y. 144).
    The complaint alleged also that the plaintiff’s damage arose from the failure of the defendants to perform their obligation to keep their streets in safe condition for travellers ; and there was ample evidence to entitle plaintiff to go to the jury. The plaintiff is entitled to the most favorable inference possible to be drawn from the evidence (Rehberg v. Mayor, &c., 91 N. Y. 138; Clemence v. Auburn, 66 Id. 334). He showed that the vault-cover was raised above the sidewalk; that it was dangerously smooth in wet weather and obviously so ; that the portion of the sidewalk in which the coal-cover was placed was out of level, so as to raise the cover still higher; and that the vault cover and sidewalk had long been in this condition ; and that a safer cover had come into use ; that the defendants had recognized by their ordinances that this vault-cover was dangerous—1st, by its location in the sidewalk; 2d, by its character. These ordinances taken in connection with the proved condition of the vault-cover and sidewalk, and the injury to plaintiff therefrom, are more than sufficient to make out a prima facie case of negligence against the defendants (Reinhard v. Mayor, &c., 2 Daly, 249). The ordinances in evidence, are obviously intended to further the fulfillment of the city’s obligation ; and so far as they are regulations for the guidance of the city’s own officers in taking care of the streets, violations of them are competent evidence on the question of negligence (Wood v. N. Y. C. & H. R. R. Co., 70 N. Y. 199). That all the ordinances were not enforced, is also evidence of the negligence of the defendants. They show what the corporation regarded as essential—quoad vault-covers—to the safe and proper condition of the streets; and a recognition by the corporation that the vaul t-cover and the sidewalk in this case, formed a dangerous obstruction (Wood v. N. Y. C. R. R. Co., supra; Rehberg v. Mayor, 91 N.Y. 245).
    
      George P. Andrews, corporation counsel, and D. J. Dean, for respondents.
    -—The corporate authorities are only bound to use reasonable skill and diligence in making the street safe a nd convenient for travel (Dillon Mun. Cor. § 1015; Ring v. Cohoes, 77 N. Y. 86). The defendants are net responsible for the accident so far as the same was caused by the mere slipperiness of the walk produced by snow, &c., then falling (Dillon Mun. Cor. § 1006; Stanton v. Springfield, 12 Allen, 566; Cook v. Milwaukee, 24 Wis. 270; McCarthy v. Syracuse, 46 N. Y. 194; McGinty v. Mayor, 5 Duer, 674; Griffin v. Mayor, 9 N. Y. 456; Battersby v. Mayor, 7 Daly, 16). In order to establish actionable negligence in respect to the sidewalk and vault-cover, the plaintiff must establish a condition of manifest unsafety, so evident and notorious that it was neglect not to have discovered the dangerous condition and procured the amendment thereof (Masterton v. Mt. Vernon, 58 N. Y. 394; Smith v. Mayor, 66 Id. 295; McCarthy v. Syracuse, 46 ld. 107; Hume v. Mayor, 47 ld. 646; Mayor v. Sheffield, 4 Wall. 189; Colley v. Westbrook, 57 Me. 181; Griffin v. Mayor, 5 Selden, 546; Dillon Mun. Cor. § 797; 2 Thompson Neg. 762; Hart v. Brooklyn, 36 Barb. 227).
    
      If the action of the plaintiff in this case was against the person who caused the vault opening to be made, or who has maintained it, or against the owner who procured the sidewalk to be laid, then the ordinances in question would, as against such persons be some proof of negligence. But it is no proof of neglect against the city, which has committed no act in violation of the ordinances, that its ordinance has been violated by the owner or occupant of the property (Levy v. Mayor, 1 Sand. 467). A city is not liable for failure to enforce its ordinances (Fowle v. Alexandria, 3 Peters, 466). The violation of a corporation ordinance does not ipso facto create a right of action, where none existed before (Fuch v. Schmidt, 8 Daly, 318).
   By the Court.—Sedgwick, Ch. J.

—The plaintiff was hurt by slipping upon an iron vault-cover in the sidewalk of East Fourteenth street. The cover was about eighteen feet from the curb of the .gutter, and about seven feet from what was assumed to be the coping of the area of the adjoining house. In a photograph of the premises no area appears, but the decision did not turn upon there being no area.

The plaintiff read in evidence certain city ordinances ; one (§ 188), was that the opening of the vault shall be either within twelve inches of the curb-stone of the sidewalk or within twelve inches of the area in front of the house, under the penalty of one hundred dollars. Another (§ 199), was that the commissioners of police are hereby directed to report to the commissioner of public works the owners or occupants of any store having vaults under the sidewalk, with covering over the opening thereto presenting a smooth surface, and the commissioner of public works is thereby directed to remove such covering and substitute therefor coverings presenting a rough surface and affording a secure foothold for pedestrians, and that any owner or occupant neglecting or refusing to comply with the directions contained in such notification for a period of six months should incur a penalty of $5 for every day in excess of said six months, that such neglect or refusal should continue. Another (§ 99), was that all sidewalks should be raised from the curbstone in the proportion of two inches in ten feet, under the penalty of ten dollars, to be sued for from the person laying the same and the owner of the lot fronting on the sidewalk.

The plaintiff claimed that if these ordinances had been enforced, the accident would not have happened, and therefore their non-enforcement, under the circumstances, gave an action against the city.

It is manifest that the passing of these ordinances, and the city providing officers whose duty it should be to enforce them, are acts indicating care, and are not acts of negligence ; and decided cases show that an individual has no cause of action against the city from the officers of the ■corporation neglecting their duty to . enforce ordinances (Levy v. Mayor, 1 Sanf. 465; Griffin v. Mayor, 9 N. Y. 456; Lorillard v. Town of Monroe, 11 Id. 392). If this were not the law, it would be necessary to inquire whether it appeared that the ordinances had not been enforced, of that if they had been, how the enforcement would, have prevented the accident.

If, however, irrespective of the ordinances, there was an obligation toward the plaintiff on the part of the city, a failure to perform it giving him a right of action, and that ■obligation involved knowledge or notice of certain things, then if the ordinances proved that the city had such knowledge or notice, they would be competent evidence, to be properly applied to the facts proven.

The plaintiff’s case assumes that it was the duty of the ■city to use ordinary care and diligence to keep the sidewalk reasonably safe for passers in walking upon it, and that this comprehended the coveringof the vault. This duty existed, irrespective of the ordinances. The ordinance in section 192, does not tend to show that the city had knowledge that there was danger to passengers, of their slipping upon a vault-cover, more than twelve inches from the curb of the sidewalk, or more than twelve inches from the coping of the area. It implies no more than that there were reasons, which it does, not appear were applicable to the danger of slipping. It may have been directed to the chance of passengers stumbling over the cover, or falling into the opening if the cover were displaced.

The ordinance in section 199 seems to imply that there was to the knowledge of the city danger of passengers slipping npon a vault covering, that presented a smooth surface and that did not present a rough surface which afforded a secure foothold for,pedestrians. This ordinance, however, did not enlarge the obligation of the city, beyond what the law otherwise deemed to be the duty of the city. In both instances, it would be necessary to prove that the city had been guilty of some want of care, in not preventing the maintenance of a smooth vault cover.

The ordinance in section 99, does not tend to show that it was passed because the city knew that unless the sidewalk was raised from the curbstone in the proportion of two inches in ten feet, there would be danger of passengers slipping upon it, or that the sidewalk would not be reasonably safe from that danger. If the ordinance meant' the proportion of two inches in ten feet, and no more, there-were other purposes, such as drainage, that were to be sub-served by such a pitch and if the danger of slipping was considered, then it intended that such pitch would be safe, while it did not pretend that any particular greater pitch would be unsafe.

The question therefore comes, did the plaintiff make a case, irrespective of these ordinances, which should have been submitted to the jury.

The vault-cover had been upon the sidewalk more than four years, and therefore the city was presumed to know of it being there, or to have been guilty of negligence in not learning of its being there. There was no proof that the city was negligent in allowing the vault-cover to be placed in the sidewalk or to remain there. The duty was, to use ordinary care to furnish a reasonably safe place to step upon. There was no proof that in the performance1 of this duty, the city could resort to any test but the appearance presented by the exterior of the cover. It appeared by a witness for the plaintiff, who had a wide knowledge of the kind of covers used for vaults for many years back, that this cover was of a kind in common use. Of course, if the evidence had otherwise proved that this cover was dangerous, then that it was like other covers in common use, would not have tended to show, that the plaintiff had no action. But when the appearance of the cover is the test, then inasmuch as what is commonly used, may be considered to be reasonably safe, a similarity of appearance would tend to show that there was no negligence. There was no proof that this vault-cover had something peculiar to it, that distinguished it, individually, from others of its class, and that made it dangerous. What has been said particularly applies to the vault-cover as first placed in the sidewalk. There was nothing in the evidence to show that from use, it had apparently become dangerous. Common information enables us to say that continually stepping upon the-iron of the cover would make it smooth and slippery at some time, but not at some point of time before the accident, so that it would present an appearance of danger. The evidence on that point was given by the plaintiff himself, who testified that he slipped because it was a smooth surface; that he only noticed the cover after he was taken up, after his fall; that he could llot tell how near the-center of the cover he placed his foot; that it had been snowing, and that the sidewalk was covered with slush from the melting snow. The vault-cover was produced to the witness, and he was asked: “ Where is the smooth surface about that % A. It is all smooth. Q. Where ? A. The whole surface, if you put some snow on it you will find it smooth enough. Q. You mean to say, that because it is iron and because these little grooves run from the center to the edge here, it is a smooth surface ? Is that what you mean \ A. I mean it presents no foothold for the foot, so that on slippery days a man would slip off it, as if it was a piece of ice.” It is evident that the plaintiff did not mean to testify that there were places on the cover, where the iron had been so worn that they presented a slippery surface, irrespective of the slush that had been on it, at the accident; but that the cover and the slush upon it presented a smooth slippery surface.

It might have been a question for the jury, perhaps, if the condition of the cover before the accident had been sufficiently proven, to say whether it was proper caution to leave the cover as it was, in view of the possibility or probability of a fall of snow making it slippery. The defect is, .that it does not appear on this appeal, that before the accident the cover presented such an appearance that the question could go.to the jury.

The cover itself was produced on the trial but not on the appeal. A photograph of the sidewalk and the cover in it, was proven. Oral testimony that made reference to its appearance was given. On this appeal, it does not appear that there was an appearance of a slippery surface, or one likely to become slippery when snow fell, in any other sense than would apply to the cover when it was first put in, or indeed, to all vault covers whatever. It appeared that all covers, however rough in construction, would be slippery after the recesses in them were filled with snow.

There was no negligence shown as respects the pitch of the cover and the stone in which it was, being dangerous. It was shown by a witness for plaintiff, that the pitch was not greater than was commorily in use in the streets.

There was no negligence, in respect of the place where the vault cover was inserted in the sidewalk, for as respects the actual cause of the accident defendant’s duty is performed when a safe place to walk upon is furnished.

The judgment is further attacked as containing an extra allowance of $500. This had been granted after the verdict was rendered, but without notice and as the plaintiff thought, ex parte. He therefore,-made a motion to set the order giving the allowance aside, on the ground that the order should have been made upon notice. I think the denial of this motion was correct, because if there had ■been originally an incorrect practice, the hearing of the motion was practically as to whether there should be an. allowance. But I think the amount of the allowance should fctf reduced to $100.

Judgment modified by the reduction of the allowance, z ad as modified, affirmed with costs.

Order denying motion, as to insertion of allowance, in judgment modified by making the allowance $100, and as modified, affirmed with costs.

O’Gorman, J., concurred.  