
    George Frost, Appellant, v. Village of Port Chester, Respondent.
    Second Department,
    June 17, 1910.
    Municipal corporation—village—highway—negligence—principal and agent — owner of property compelled to lay sidewalk.
    Where flagstones and dirt were left on a sidewalk by a contractor only a few hours before a pedestrian fell over them and was injured, the municipality cannot be charged with constructive notice.
    Where a dangerous condition of the highway results from the acts of the municipality itself, or its agents, it is not necessary to prove actual or constructive notice in order to recover for injuries caused by the defect.
    But a village which by its charter has power to require, property owners to lay sidewalks in front of their premises, is not liable for the negligence of a contractor employed to lay a walk by a property owner who had been directed by the village authorities to have the work done.
    There was nothing inherent in the nature of the work which charged the village with the duty, of anticipating danger.
    Appeal by the plaintiff, George Frost, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at’ the Westchester Trial Term.
    
      William A. Davidson, for the appellant.
    
      Clinton T. Taylor [ William, A. Sawyer with him on the brief], for the respondent.
   Carr, J.:

The plaintiff was injured by falling over some obstructions on a sidewalk of the village of Port Chester on the night of June 29, 1907. The night was rainy and .he was carrying an umbrella. As he came along the street to the place of the accident he stumbled over a pile of dirt on the sidewalk and fell to the ground, striking his body against some large flagstones which had been placed near the curb.' The flagstones and dirt had been left there in the afternoon of tlie same day, but a few hours before the accident, and if actual or constructive notice' to- the defendant of the condition of the sidewalk was necessary, enough' was not shown to charge it with notice and with liability. (McKee v. City of New York, 135 App. Div. 829, and cases cited.) The plaintiff’s complaint-was dismissed at the trial. From the' judgment of dismissal this appeal is taken. The appellant contends that the facts of this case bring it within the rule declared in Wilson v. City of Troy (135 N. Y. 96), and the earlier cases there cited, where it was held that when' the dangerous condition of the highway results from the acts of the municipal corporation itself, or of its agents, a necessity of proving actual or constructive notice of the condition in order to impute liability does not exist.

It appears that the village charter gave its authorities power to require abutting owners to lay sidewalks in front of their premises according to a fixed grade. The owner of the premises abutting the place of accident had been so directed by the proper authorities. He entered into a contract to do the work. As the place where the sidewalk was to be laid was, in spots, below the fixed grade, some dirt had to be used for filling. The contractor brought along the flagstones and dirt and left them where they were to be used, and omitted to place any barrier or light about or near them. The appellant contends that in directing the sidewalk to be laid ■ the defendant was acting in its own behalf, and that in the process of carrying out the improvement the abutting, owner and his contractor were but the agents of the defendant, for whose negligence it is as liable as if it had done the work itself. No authority in this State, precisely in point, is called to our attention. In the case of Wilson v. City of Troy the accident was caused by an excavation in the highway made by .the employees of the city. Such condition was necessarily dangerous if left unguarded and unlit in the night time. It was there held that there could be no question of necessity of notice that it was unguarded and unlit, for the duty to guard and light was upon the same being which made the excavation. So among the cases there cited are some where a city had made a contract for certain improvements which necessitated the storing of material on the highway, and it was held that as the city knew the • material had to be placed upon the highway it was bound to take steps in advance to procure the placing of barriers or lights for the. protection of travelers. The situation of grading and laying a sidewalk on a village street is practically different. There is nothing inherent in the nature of such work which charges the municipality with the-duty of anticipating a dangerous incumbrance or obstacle. For instance, in the case at bar the village was not bound to anticipate that the dirt brought for filling purposes would have been left in a dangerous pile. At most, it was but a small quantity and would have taken but very little time, at most a few minutes, to level it off. Nor was it bound to anticipate that the flagstones would be left dangerously near the traveled way. In one sense the abutting owner was the agent of the village in laying the sidewalk; that is, he was' doing himself, at his. own expense, a public work under the order of the village, which otherwise the village had power to do itself at his expense. (City of Keokuk v. Independent District of Keokuk, 53 Iowa, 352.) At the same, time neither he nor his contractor was the agent of the city in such sense as to make the city liable under the principle of respondeat superior in the doing of any act which in itself need not render the highway unsafe.

The judgment should be affirmed, with costs.

Present — Woodward, Jenks, Burr, Thomas and Carr, Jj.

Judgment unanimously affirmed, with costs.  