
    Mary Holroyd, Appellant, v. Thomas Sheridan, Respondent, Impleaded with John E. Dwyer.
    
      Nuisance—injury from a daor opening upon and across a milage street—permission from the milage must he pleaded.
    
    A barn, opening on the level of the sidewalk of a village street, furnished with doors which, when opened or shut, swing over the sidewalk more than one-third of its width, constitutes a nuisance which will render the owner thereof liable for injuries sustained by a person walking along the sidewalk, while the barn is in the possession of a tenant, in consequence of his being struck by one of the doors which has been left unfastened and has been blown or thrown open.
    The permission of the municipal authorities authorizing such plan of construction cannot be proved unless pleaded.
    Parker, P. J., and Edwards, J., dissented.
    Appeal by the plaintiff, Mary Holroyd, from a judgment of the Supreme Court in favor of the defendant Thomas Sheridan, entered in the office of the clerk of the county of Saratoga on the 11th day of October, 1899, upon the dismissal of the complaint upon the merits as against the defendant Sheridan, by direction of the court after a trial before the court and a jury at the Saratoga Trial Term, and also from so much bf a judgment entered in said clerk’s office on the 12th day of October, 1899, as dismissed the complaint upon the merits as to said defendant.
    Upon December 18,1896, the defendant Sheridan was the owner of the hotel premises, Clifton House by name, in the village of Waterford, Saratoga county, a village of about 5,000 inhabitants. Connected with this house is a barn owned by defendant Sheridan, and both house and barn were at that time leased to the defendant Dwyer. The barn stood practically flush with the sidewalk and had large heavy doors which in opening and shutting swung over the sidewalk a little more than a third of its width. Upon the 18th day of December, 1896, these doors had been negligently left unfastened and swung out and struck the plaintiff, who was lawfully using the sidewalk, breaking her arm in two places. For this injury she has brought action against the defendant Sheridan for maintenance of a nuisance and against the defendant Dwyer for the same cause and negligence. She recovered a small judgment against Dwyer, which is not here in review. Her complaint against Sheridan was dismissed at.the trial upon the merits, and from the judgment entered upon this dismissal this appeal is taken.
    
      W. C. D. Willson, for the appellant.
    
      Thomas O’ Connor, for the respondent.
   Smith, J.:

That these premises were leased by Sheridan to Dwyer is admitted by the pleadings. If, then, the existence of this structure with the doors swinging over the walk constitutes a nuisance, the defendant Sheridan is liable equally with the defendant Dwyer. (McGrath v. Walker, 64 Hun, 179; Timlin v. S. O. Co., 126 N. Y. 514.)

That this construction constitutes prima facie a nuisance seems to us clear. It hazarded the use of the sidewalk by those who had a right to its free use without peril. Whether the injury occurred by negligently permitting the wind to blow open the doors or by negligently throwing back the doors, the improper construction of the doors that could be thus negligently made a cause of injury to those lawfully using the walk would seem to be an infringement of the rights of the public and a wrong.

In McGrath v. Walker (64 Hun, 182) a pit in the sidewalk was held to be a nuisance because it imperiled the safety of travelers. In Congreve v. Smith (18 N. Y. 82) it is said : “ The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it or renders its use hazardous, by doing anything upon, above or below the surface, is guilty of a nuisance; and as in all other cases of public nuisance, individuals sustaining special damage from it without any want of due care to avoid injury, have a remedy by action against the author or person continuing the nuisance.”

In Tinker v. N. Y., Ontario & Western R. Co. (157 N. Y. 318) Chief Judge Parker, in writing for the court, says: “ The primary purpose of highways is use by the public for travel and transportation, and the general rule is that any one who interferes with such use commits a nuisance. Indeed, the statute declares it to be a public nuisance and a crime against the order and economy of the state to unlawfully interfere with, obstruct or tend to obstruct a street or highway. (Penal Code, § 385.) ”

The defendant has alleged no permission of the municipal authorities authorizing this construction, and without that allegation none can be proven. (Clifford v. Dam, 81 H. Y. 53; Irvine v. Wood, 51 id. 228.)'

The trial court, therefore, improperly dismissed the complaint as .against the defendant Sheridan.

All concurred, except Parker, P. J., and Edwards, J., dissenting.

Judgment reverseu on the law and facts and new trial granted, with costs to appellant to abide the event.  