
    Irene Warden, an Infant, by William E. Warden, Her Guardian ad Litem, Appellant, v. The City of New York and Others, Respondents.
    Second Department,
    January 17, 1908.
    Municipal corporation — nuisance — obstruction of street by municipal contractor — injury to pedestrian by running against projecting cover of tool box — erroneous charge.
    Action against a city and a municipal contractor to recover for personal injuries received by a pedestrian, who ran against a projecting cover of a tool box, constituting a public nuisance.
    
      A municipal contract for the construction of a sewer required the contractor to keep the streets and sidewalks clear and free for the passage of -vehicles and pedestrians unless otherwise authorized by special permission in writing from the engineer in charge. The contractor, without such permission, not only obstructed the sidewalk and roadway near which the sewer was constructed, but also obstructed the opposite side of the street by placing on- the sidewalk a large tool hox, the lid of which when open projected over the flagstone walk. The plaintiff, a girl eleven years of age, while running on the street at dusk, ran against the open lid of the box and was injured.
    
      Held, that it was error to charge that the jury might determine whether, in the performance of the contract, it was reasonably necessary for the contractor to place the tool box upon the sidewalk, and that it was error to refuse to charge that as the contract required the sidewalk to be kept free from obstructions, unless specially authorized in- writing, the obstruction constituted a nuisance in the absence of proof of such special authorization.
    
      Held, further, that the charge was not justified on the theory that the municipal contractor was entitled to do what the city itself might do under section 50 of the charter of the city of New York, providing that the board of aldermen^ shall not have power to authorize the placing of any obstruction upon any street or sidewalk, except the temporary occupation thereof, during the erection or repairing of a building on a lot opposite the same.
    Jenks and Miller, JJ., dissented.
    Appeal by the plaintiff, Irene Warden, an infant, etc., from a judgment" of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 27th day of December, 1906, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 12th day of January, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Robert Stewart [Daniel T. O'Brien with him on the brief], for the appellant.
    
      James D. Bell [William B. Ellison with him on the brief], for the respondent The City of New York.
    
      Theodore H. Lord, for the respondents Murray and Stewart.
   Woodward, J.:

The plaintiff in this action, a girl of eleven years at the time of the accident, was seriously injured by running against a projecting cover of a tool box used by the defendants Murray and Stewart, contractors, while engaged in repairing certain sewers under a contract with the city of New York. The action was tried on the part of the plaintiff on the theory that the placing of this tool box upon the sidewalk constituted an obstruction of the street amounting to a public nuisance, and that the plaintiff, having suffered special damages, was entitled to recover, independently of any question of negligence. The pleadings justified this election, and the jury has found in favor of the defendants. The principal questions involved in this appeal relate to the charge of the court, in connection with certain rulings on the admission of evidence.

The contract, made in the usual form for such work, provided that the contractors should supply all the material and labor, and all the scaffolding, tools, derricks, tackle, implements and appliances necessary or proper for the purpose,” and to perform the work and to construct and complete the above-described sewer and appurtenances, together with all the work incidental thereto, of the dimensions, in the manner and under the conditions set forth in the specifications.” Among the conditions in .the specifications was one that “ Not more than 200 feet of trench shall be opened at any one time in advance of the complete building of the sewer, unless by written order of the engineer, and for a distance therein specified-,” and that “ at all times the gutters shall be kept open for surface drainage, and the street and sidewalks shall be kept clear and free for the passage of carts, wagons, carriages and street or steam railroad cars, or pedestrians, unless when otherwise authorized by special permission in writing from the engineer.” There is no pretense that the defendant contractors had any special permit to occupy the sidewalks for any purpose whatever; it is not pretended that the street where this accident occurred had been closed or blockaded, but it is admitted that it was held open for public use during the progress of this work. The sewer was being constructed on Pacific street, and the accident occurred near' the corner of Carlton avenue, and the tool box, a chest some eight feet long, three feet wide and five feet high, was placed upon the sidewalk on the south' side of Pacific street, where the plaintiff was injured by running against a cover of a portion of this chest hanging out over the flagstone walk, where she was playing just at dusk on the 16th day of Ndvember, 1904. The séwer trench was being dug about eight feet from the curb on the north side of the street; the dirt from this sewer trench filled the eight feet of space between the curb and the trench, and encroached upon the north walk; one witness testifies that “ there was no passageway whatever on the north side of Pacific street, on the sidewalk left by us; it was blocked off.” The material and brick and lumber and stuff were r put on the south side of the trench, leaving a roadway about twelve feet wide between this material and the south curb. The tool chést in question had been placed upon the south sidewalk, between the curb and the flagging, which did not extend the full width, and the cover of a portion of this chest, when open, projected over the flagging, and it was here that the plaintiff was injured by running into the same while at play with some other girls of her own age. This chest had .been in its then location for some little time, and ■the contractors claim the right to have it there upon the theory that it was reasonably necessary to have a tool chest, and that under their contract with the city, and a general permit to open the street for the purpose of performing their contract, their chest was lawfully upon the sidewalk, and that they are answerable only for negligence in connection with its use. Under the permit which is in evidence there is merely a general permission to open the street for the purposes of the work, and it is provided that the “engineer or inspector in charge will determine how much of the above-named streets the contractor may occupy,” which is in harmony with the provisions of the contract and its specifications. The defendants do not show that they had any special permission to occupy the south sidewalk or any part thereof, assuming that such permission might be given. Under their contract the sidewalks were to be kept clear and free, except by special permission in writing, yet the ■ evidence shows conclusively that they not only completely obstructed the street and sidewalk from a point ten feet or more south of the north curb line, but that they crossed over the open roadway of some twelve feet and placed an obstruction upon the south sidewalk, and the learned court at the trial charged the jury, over the objection and exception of the plaintiff, that they had a right to consider whether in the performance of this contract it was reasonably necessary for those contractors to have upon the sidewalk this tool box, and that, they had .a right to consider whether the placing' of this tool box there was an incident reasonably necessary to the performance of this contract. The court was requested to charge that as the contract “ specifically provides that the sidewalk shall be kept entirely free from obstructions, unless specially authorized in writing by the engineer, that in the absence of any proof on the part of the defendants of any such special permission, this obstruc-' tion of the highway constitutes a nuisance.” This request was refused and exception was noted.

It seems to me that the charge, and this refusal to charge, constitute reversible error. It is no answer to the charge of nuisance that, even with the obstruction in the highway, there ivas room for pedestrians, nor that the obstruction itself is not a fixture. If it be permanently, or even habitually, in the highway, it is a nuisance. (Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532, 535.) This tool chest was habitually in the highway; it was at a point which the defendants had stipulated should be free from obstructions, except under special' permission, and no such special permission was shown. Under the case, cited I am unable to understand how it can be held that the placing of this huge chest upon the south sidewalk, remote from the work under construction, did not constitute a public nuisance, practically so recognized under the contract, and the plaintiff was clearly entitled to have this charged.

It is urged on behalf of the city that it had a right to obstruct the sidewalk in connection with this work, and, by inference, that the charge of the learned court was correct, because its contractors had a right to do the things which the city might itself do. This right is claimed to grow" out of the provisions of section 50 of the Greater New York charter (Laws of 1901, chap. 466) by inference. The provision is that “ the board of aldermen shall not have power to authorize ..the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occu- • pation thereof during the erection or repairing of a building on a lot opposite the same.” Just how this can help the defendants I am unable to understand. It would rather seem to sustain the plaintiff’s position, under the rule that the expression of one. thing necessarily excludes all others, and neither the city nor the other defendants occupy the position of abutting owners.

It seems -to me entirely obvious that the placing of this chest upon the south sidewalk on Pacific street has no higher warrant of authority than would be the case if the same had been placed upon Carlton avenue. The defendants would undoubtedly - have the right to place materials upon the ground, under the direction of the engineer or inspector as to the space which might be occupied for-such purpose, under the .city’s undoubted right to occupy the street fot the purpose of performing a public work, but to say that a. contractor has the right to obstruct one sidewalk, in disregard of his contract, to take up more than half of the highway, and then, consulting his own convenience, to cross over the intervening way of twelve feet and place an obstruction upon the south sidewalk, an obstruction which would concededly constitute a nuisance, if placed upon any other street, is giving a license which the law does not justify. It disregards the interests of the public in the highway, and it ought not to be tolerated. It seems to me that the case of Cohen v. Mayor, etc., of N. Y. (supra), defining a nuisance, is, under the facts disclosed by this record, conclusive against the defendants, and that the case was., presented to the jury under an erroneous statement of the law, which the plaintiff lias a right to have corrected here. (See Godfrey v. City of New York, 104 App. Div. 357.)

I think the- judgment • and order appealed from should be reversed.

Hirschberg, B J., and Bich,. J., concurred ; Jenks and Miller, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event. 
      
       Since amd. by Laws of 1905, chap. 629.— [Rep.
     