
    PATRICK RYAN, Plaintiff, v. WILLIAM M. THOMSON, Defendant.
    Before Freedman, Van Vorst and Speir, J.L
    
      Decided October 31, 1874.
    The plaintiff, a policeman, while on duty in his precinct, saw a window open in the second story of the defendant’s store, and suspecting the building had been entered by burglars, he and another policeman, whom he had called to his assistance, entered the store by the window that was open, by means of a ladder. Plaintiff fell through a hoistway that was open, and sustained a severe injury, and brings an action against the defendant, to recover damages for the injury, because of the negligence of defendant in leaving the hoistway open, in violation of the city ordinance directing the same to bo closed, &c.
    
      Held, 1. That the violation of the corporation ordinance, in omitting to close a hoistway on the completion of business each day, subjects the owner, or occupant, to an action for damages, in favor of a person who lawfully entered the premises, and sustained damages by reason of the omission. A breach of the ordinance under such circumstances would be negligence. The offender is liable for the penalty, and also to an action for damages in favor of the injured person (Busegel ®. N. Y. Central R. R., 14 Abb. Pr. K. 8. 20; Jetter v. N. Y. & Harlem R. R. Co., 2 Keyes, 154). 2. It appealing by the uncontradicted testimony of three .witnesses that tne hoistway and shutters were closed on the previous evening" at the close of the business of the day, the ruling of the court below in dismissing the complaint, and directing a verdict for the defendant was correct, and should be sustained.
    The admission of the defendant, testified to by the plaintiff, to the effect ‘•that he left the window open for the purpose of drying paint,” (which admission and the fact stated was denied by the testimony of the defendant), raised no such conflict in the evidence as would have justified the submission of the case to the jury.
    Exceptions heard at general term in the first instance.
    
      On the evening of May 29, 1869, the plaintiff, a policeman, while on duty in his precinct, saw a window in the second story of defendant’s store open. Suspecting something wrong he rapped, and was joined by a fellow-policeman named Gannon. They entered by means of a ladder, at the window, which was shoved up. Gannon lit a match, but it went out. Plaintiff intending to take a match out of his pocket stepped backwards and fell through a hoistway which was open, to the floor below, and dislocated his hip. To recover damages for this injury the action was brought. An ordinance of the city of New York was introduced in evidence by the plaintiff in these words.
    “ Of Hoistways.”
    
      “ The owner or occupant of each and every store or other building in the city of New York, in which there" is a hoistway, shall cause "the said hoistway on each story of said store or other building, to be forthwith inclosed by a good and sufficient railing around the opening thereof, and provide for the inclosing of such opening by a trap-door, and each owner or occupant of any such building or store shall cause said railing to be securely fastened up, and said trap-door to be closed, on the completion of the business of each day, in such store or building; and for every violation of the provisions of this section or any of them, the owner or owners, occupant or occupants of any such store or building, shall be liable to a penalty of fifty dollars for each and every offense.”
    When the testimony was closed, the court ordered a verdict in favor of the defendant. The plaintiff’s exceptions thereto were directed to be heard in the first instance at the general term.
    
      Nelson, Cooke & Thorn, plaintiffs attorneys.
    
      William, G. Cooke, of counsel.
    
      
      Wright and Landesman, defendant’s attorneys.
    
      Charles Kipp, of counsel.
   By the Court.—Van Vorst, J.

The city ordinance providing for railings around hoistways, and for their being closed on the completion of the business of each day, would seem to be a wise precaution in favor of policeman, fireman, and others who are often obliged to enter at night stores and warehouses, with which they are not familiar, to arrest burglars, extinguish fires, or for other lawful occasions, and the omission by the owner or occupant of a building to use the precautions indicated in the ordinance, would reasonably subject him to an action for damages in favor of one * lawfully on the premises, who should sustain injury through such, omission. A breach of the ordinance under such circumstances would be negligence. The violation of the ordinance being unlawful, the offender is not only liable for the penalty imposed thereby, but also to an action for damages in favor of one injured through the omission (Beisegel v. N. Y. Central R. R. Co., 14 Abb. Pr. N. S. 29).

The case of Brown v. State Line R. R. Co. (22 N. Y. 191), to which we have been referred by defendant’s counsel, holding a contrary doctrine with regard to the consequence of the violation of a municipal ordinance, duly passed, has been substantially overruled by the above case, as also in Jetter v. N. Y. & Harlem R. R. Co. (2 Keyes, 154), in the same court.

But the evidence does not establish that the defendant violated the ordinance in question. The defendant testified that when he left his store at the close of business hours, on the afternoon of the day in question, and several hours before the plaintiff sustained his in- * juries, the hoistway was closed. Tullebaum, the porter of the defendant, and whose business it was to close the hoistway, says that he closed it and left the store in company with the defendant.

The testimony of the defendant and his porter is corroborated by the positive evidence of the witness Stevenson, who was in the store when it was closed. Before the store was locked up he looked up and saw that the hoistway was closed. This witness had property stored on the premises, and does not appear to have had any interest in the suit.

All these witnesses testify that the outside shutter was closed when they left the premises. There is no evidence to contradict these positive statements of these three witnesses, unless it be found in what is claimed to have been an admission made by the defendant to the plaintiff some months afterwards, that the hoist-way and window had been left open.

The direct admission if made, however, was not that the hoistway had been left open, but the window “ to dry paint.” The remainder of the claimed admission is inference only. The defendant denies positively the making of any such admission.

The evidence in regard to the defendant’s admissions, and especially so when it is positively denied, would not have justified the jury, in the event that the case had gone to them, to set aside the positive evidence of the three witnesses whose testimony is wholly unimpeached, except by such claimed admission of one of them, to the effect that the hoistway and shutters were closed when the store was shut up for the day.

And a verdict for the plaintiff obtained under such a state of proof, must have been inevitably set aside as against the clear weight of evidence.

The shutter and window being found open sometime after the store had been closed for the day, attracted the notice of the plaintiff, and had aroused his suspicions that all was not right. If the premises had been burglariously opened and entered, the plaintiff supposed it to be Ms duty to enter and arrest the offenders, and secure the building.'

The suspicious facts and circumstances upon which the plaintiff acted suggest an agency through which the window as well as the hoistway were opened, without attributing the same, in opposition to the evidence, to the negligence of the defendant.

We find no such conflict in the evidence as would have justified the submission of the case to the jury.

The exceptions to the judge’s rulings should be overruled, and judgment ordered on the verdict in favor of the defendant, with costs.

Freedman and Speir, JJ., concurred.  