
    Francis Gottsberger, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
    (New York Superior Court—General Term,
    July, 1894.)
    Plaintiff, while hurrying diagonally across West street to take the ferry, stumbled over a stringpiece and was injured. The stringpiece was used to cover a water pipe to the buildings on the pier and to prevent teams from colliding, and the evidence was conflicting as to whether it encroached upon the limits of the street. Held, that if the accident occurred west of the west line of West street it was upon property in the exclusive control of the department of docks, and the city was not liable therefor, and that if the stringpiece encroached at all upon the street, it was to an inconsiderable extent, and the city could only be made liable by proof that it was a dangerous obstruction, or was out of repair; that it was not a nuisance per se.
    
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.
    
      Wm. H. Clark (Theodore Connoly and Terence Farley, of counsel), for appellant.
    
      Charles A. Flammer, for respondent.
   Freedman, J.

At the trial the plaintiff testified that on the evening of October 14, 1890, he walked down Warren street with the intention of taking the Erie ferry at the foot of Chambers street to catch the seven o’clock train for Sterling-ton; that upon arriving at the southeast corner of West and Warren streets, instead of continuing on the east side of West street till he would have reached the crosswalk in front of the ferryhouse, he took a diagonal course over the cobblestone pavement toward the ferryhouse at what he termed a slow run or a sort of a dog trot; that at said time he had an umbrella in his right hand and a little handbag in his left hand, and that, while he was proceeding in this way diagonally across West street, he suddenly collided with a stringpiece on the westerly side of West street, fell over it and was injured. The action was brought to recover damages for the injury sustained under these circumstances. The plaintiff also admitted that there was no obstruction in West .street which prevented him from crossing to the Chambers street ferry by the ordinary crosswalks; that the street was •entirely deserted at the time, except that there were a few horse cars upon it, and that he was in a hurry because he was apprehensive that he might be late.

The alleged stringpiece had, according to all the evidence, been used for about eight years as a protection to a water pipe that runs into the buildings on the dock, and also to prevent the teams going up and down the pier from interfering and colliding with one another. It, therefore, had, for quite a number of years, served a highly useful purpose.

There was some conflict, however, as to whether the precise spot at which the plaintiff claimed to have fallen over the •stringpiece was or was not within the limits of West street proper as laid out by law. If it was west of the westerly line of West street, it was upon ground which may well be deemed to be part of a dock structure, and over which the department of docks had exclusive control under the statutes which define and regulate the jurisdiction, powers and duties of said department. In that aspect the plaintiff has no cause of action against the corporation of the city of New York. Bigler v. Mayor, etc., 5 Abb. N. C. 51; McKay v. Buffalo, 9 Hun, 401; 74 N. Y. 619; Maxmilian v. Mayor, etc., 62 id. 160; Tone v. Mayor, etc., 70 id. 157; Ham, v. Mayor, etc., Id. 459; New York & Brooklyn Sawmill & Lumber Co. v. City of Brooklyn, 71 id. 580; Smith v. Rochester, 76 id. 506.

But suppose the stringpiece did encroach upon the limits of West street considered as a public highway. If it did, it was ■to an inconsiderable extent. It was not a nuisance per se, and the liability of the city must rest upon negligence. The plaintiff so treated it in his complaint, which is based upon negligence. There was nothing out of repair, and consequently, if the city is liable at all, it is liable for permitting something to exist which constituted a dangerous obstruction •of the public highway. Hot every obstruction is actionable. If that were so, no water hydrants, trees, hitching posts, telegraph poles, awning posts, stepping stones, not even the stoops of the houses projecting beyond the house lines, could be permitted to remain. This subject has been so fully discussed in the recent ease of Platt v. Mayor, that a bare reference to that case is all that is necessary here. The plaintiff was, therefore, bound to prove that to the extent that the stringpiece encroached upon the westerly line of West street it constituted a dangerous obstruction to public travel. The plaintiff failed to sustain the burden of proof in this respect. The mere fact that he himself was injured while proceeding in a hurry cannot be held sufficient, in the face of the fact, established beyond controversy, that the so-called stringpiece had fulfilled a highly useful purpose for many years, and that such purpose was a public one. So far from being bound to apprehend danger from the mere existence of the stringpiece, which was from twelve to fifteen inches high, the city may be deemed to have béen justified in assuming that the stringpiece was sufficiently conspicuous and safe for all ordinary purposes.

Upon the whole case, I am satisfied that, even if the plaintiff did not contribute by negligence on his part, the occurrence was an accident for which the city should not be held liable.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

McAdam, J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  