
    Max Jawitz, Appellant, v. Leopold Hellinger, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Nuisance — action for — liability for injuries to plaintiff by stepping through coal hole in sidewalk — evidence.
    Proof that a pedestrian was injured by stepping through the cement cover of a coal hole in the sidewalk on premises owned by defendant makes out a prima facie case of nuisance.
    Where a coal vault had been under the sidewalk for about thirty years defendant was liable for injuries to plaintiff, although at the time of the accident a tenant was in possession of the premises.
    Where the action was brought both on the theory of negligence and of nuisance and plaintiff was not asked to elect, the dismissal of the complaint on the ground that no negligence on the part of defendant had been shown was unwarranted.
    Appeal Tby plaintiff from a judgment of the Municipal Court of the city of New York,' borough of Manhattan, second district, dismissing the complaint at the close of the case, after a trial by a judge and jury.
    Arthur Hutter, for appellant.
    Amos H. Stephens (James E. Turner, of counsel), for respondent.
   Bijur, J.

Plaintiff sued for injuries received by him January 1, 1913, from stepping through the cement cover of a coal hole on premises owned by the defendant. Prior to the trial it had been stipulated by both counsel that there was a coal vault and shute in the sidewalk in front of these premises and that the opening was covered by a cement cover.

Upon proof of the occurrence of the accident and the injury, plaintiff had made out a prima facie case in nuisance. Clifford v. Dam, 81 N. Y. 52.

It was also stipulated that the vault had been constructed some thirty years ago. Consequently defendant, as owner, was liable although a lessee was at the time of the accident in possession of the premises. Uggla v. Brokaw, 117 App. Div. 586, 595; Timlin v. Standard Oil Co., 126 N. Y. 514.

The parties had further stipulated that no written application for a permit and no record of the issuance of a permit for this vault existed, thus overcoming the presumption of a permit arising out of long continuance. Deshong v. City of New York, 176 N. Y. 475. Plaintiff was not permitted to introduce in evidence duly authenticated copies of. the ordinance showing that the permit must be in writing.

Defendant was permitted, over the objection of plaintiff that it violated the stipulation, to prove that the vault had been completely filled in some years ago and no longer existed. This was allowed by the learned judge below, although he had said that he would hold the defendant to his stipulation.

Apparently the point on which the complaint was dismissed was that no negligence on the part of the defendant had been shown, but as the action was brought on both the theory of negligence and nuisance and the plaintiff had not even been asked to elect, the dismissal of the complaint was unwarranted.

Seabury and Page, JJ., concur.

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