
    Henry Nenstiehl, Appellant, v. Charles Friedman, Jacob R. Rabinowitz and Samuel Rabinowitz, Respondents.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Negligence — when defendant may not raise question of trespass — nuisance.
    Where from a window in defendants’ factory their employees were in the habit of throwing boxes upon an adjoining lot which" did not belong to defendants, and a box so thrown struck •and injured plaintiff’s child who was at play on said lot, defendants may not raise the point that the child may have been a trespasser, and may properly be held liable either on the theory of negligence or of nuisance.
    
      Appeal by plaintiff from a judgment of the Municipal Oourt of the city of New York, borough of Manhattan, fourth district, “ dismissing the action on the merits ” at the close of plaintiff’ case.
    Walter P. Vining (Alfred Ekelman, of counsel), for appellant.
    David Steckler, for respondents.
   Bijur, J.

As no complaint is made of the form of the judgment, it need not be referred to. Plaintiff proved that defendants operated a factory, from one window of which their employees were in the habit of throwing boxes, box-lids and other refuse upon an adjoining lot which did not belong to defendants. Plaintiff’s child, three years of age, was playing with two or three children in this open lot when defendants’ employees threw an empty box weighing about one hundred pounds out of the window. It struck and injured plaintiff’s child, and this action is brought to recover for the resultant damages.

The learned judge below seems to be of opinion that plaintiff was a trespasser upon the adjoining lot, and consequently could not recover from defendants unless injured by something in the nature of a “ trap.” lit this, however, he was in error. In the first place, there was no proof that plaintiff’s child was a trespasser, and indeed no proof as to ownership of the lot, except that it did not belong to the defendants. Moreover, there was proof that there was a path running through the lot and that it was continuously used by persons generally as a short-cut; also that children customarily played thereon. But, apart from that consideration, plaintiff’s child was not a trespasser "as to defendants, or rather the point that plaintiff’s child may have been a trespasser on an adjoining lot cannot be raised by defendants. Wittleder v. Citizens Elec. Illuminating Co., 47 App. Div. 410; Wilson v. American Bridge Co., 74 id. 596. Both these cases are cited with approval in Weitzmann v. A. L. Barber Asphalt Co., 190 N. Y. 452. Defendants could also properly be held either on the theory of negligence or of nuisance. Hogle v. Franklin Mfg. Co., 199 N. Y. 388. Whether or not plaintiff might be held guilty of imputed contributory negligence by allowing his young child to play on this lot might become a question for the jury, if knowledge of defendants’ employees’ habitual negligence had been brought home to him, but there is not even a hint to that effect in the testimony.

Guy and Pendleton, JJ., concur.

Judgment reversed and new trial granted with costs to appellant to abide event.  