
    Emma Opper, Administratrix, etc., of Henry Opper, Deceased, Respondent, v. Leopold Hellinger, Appellant, Impleaded with Isaac Davega, Jr.
    First Department,
    December 7, 1906.
    ¡Nuisance — injury by falling down steps leading to-cellar — when steps not a nuisance — municipal ordinance — landlord not liable for negligent use of steps by tenant.
    When injuries are received on steps leading from a city street to a cellar leased to a tenant' and under his control, the landlord is not liable therefor if the injuries arose through the negligence of the tenant. Liability of the landlord can only be based upon the theory that the opening to the cellar is a nuisance.
    If such cellarway maintained in the city of ¡New York under a municipal permit does not extend from the building line more than one-twelfth of the width of the street nor more than five feet into the street as provided by section 341 of the city ordinances, end when closed is protected by substantial folding doors which have no defects, the structure is not a nuisance and the landlord who has leased the cellarway is not liable for injuries received by a pedestrian who fell into the cellarway when the doors were open and the steps in use by the tenant.
    Section 342 of the municipal ordinances does not apply to a cellarway of such construction, but only an open flight of steps.
    (Per Ingraham, J.): A use of such cellarway for thirty years raises a presumption that it was maintained under a municipal license.
    Appeal by the defendant, Leopold Hellinger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1906, upon the verdict of a jury for $8,300, and also from an order entered in said cleidc’s office on the 5th day of March, 1906, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Carl Sehurz Petrasch of counsel [Henry S. Mansfield with him on the brief], for the appellant Hellinger.
    
      Thomas J. O'Neill [Joseph A. Shay with him on the brief], for the respondent.
   Clarke,J.:

The defendant Hellinger is the owner of the premises Ho. 802 Third avenue in the city of New York, The defendant Davega. has occupied the store and basement.of the.said, premises for at. least nine years under a yearly lease. The complaint alleges as follows : That on or about August 3rd, 1905, while said Henry Opper, deceased, was lawfully passing on the highway in front of said premises, $ 802 Third avenue, * * ' * he fell into an open and unguarded cellarway connected with said premises and received physical injuries which caused his death, and that said injuries and death were caused without any negligence, on his part, but .solely by the negligence of the defendants, in that they both negligently, Wrongfully and in violation of the laws of the State of New York and the ordinances of the city of New York then in force, maintained anrd conducted said cellarway in an unsafe, unguarded, unprotected and dangerous condition, so that the same was open and no protection was maintained to prevent passersby from falling therein, and in that the doors thereon were unsafe aind insufficient, as .a result of all of which plaintiff’s intestate "fell into said cellar-way and sustained the injuries which caused his death as aforesaid.”

The defendant Hellinger in his.answer alleged that the injuries complained of were caused wholly or in part by reason, of Opppr’s own negligence, or by reason of the negligence of some person over, whom said defendant had no control, and not by ‘ reason of any negligence on the part of said defendant, his agents,, servants or employees. He further alleged, upon an amendment allowed at the trial, that the cfefendant Davega was in the occupation, possession and enjoyment of" the, store and basement referred to in the complaint; that the cellarway was appurtenant thereto, and that said Davega was responsible for the care and conduct of the said portion of the premises, and not this defendant, and that said cellar-way and its appurtenances were duly maintained and used by virtue of a license,-right or privilege duly obtained from pr conferred by the municipal authorities of the city-of New York,¡and were well built and free from dangers, and in good and safe condition.

The defendant Davega in his answer alleged that the injuries sustained by the deceased were due to his own negligence, and not the result of the negligence of this, defendant or any of his agents* servants or employees. He did not amend his answer to set up the license from the city authorities as did Hellinger. j

While the complaint is susceptible of interpretation as alleging a cause of action based either upon negligence or upon nuisance, the case seems to have been tried npon the theory of the erection and maintenance of a nuisance. The evidence tends to establish that the Third avenue opposite the premises in suit is one hundred feet in width ; that the roadway thereof is sixty feet in width, and that the sidewalk upon each side is twenty feet in width. The cellar-way opens from the street and gives approach to the basement by a flight of stone steps, and the opening does not project into the street more than five feet from the building line, leaving fifteen feet in width of clear sidewalk. This cellarway is covered by what is called fourfold iron doors, which meet in the center of it when closed, secured by staple and lock, the key of which is in the control of the defendant Davega. The doors are so constructed that each of the two-flaps are hinged in the center thereof, so that when the doors are open each flap is folded over upon itself and stands tipon the sidewalk about twelve inches high, forming when thus opened a guard. to the open 'space upon the sides, consisting of a triangle whose sides are the tvvo halves of the two flaps of the side of the door composed of iron.

The accident occurred about half-past- ten o’clock in the morning of a bright clear day. An employee of the tenant Davega was on the cellar' steps, in the act of coining up, when the deceased fell into the cellar, striking the employee Schwartz, and then falling upon the stone steps, receiving injuries from which he died. The testimony as to the accident itself is conflicting. Plaintiff claims that the deceased and his young stepson were walking up the street when they saw two boys approaching them, between whom was a bulldog held by a strap in the hands of each of the boys; that to avoid the' bulldog the deceased side-stepped ” towards the store, tripped over the iron doors, then in the position outlined as above, and fell into the cellar. The defendants contend that there was no bulldog . upon the street; that the deceased was walking in a zig-zag fashion up the street and fell sideways and straight into the cellar, and that he did not trip over the doors at all.

As the testimony in regard to the method of falling was conflicting, it was a pure question of fact for the jury. The jury found a verdict in favor of the plaintiff and against both of the defendants.'

So far as the defendant Hellinger, the owner of the building, is concerned, we can find no theory upon which the judgment against him can be sustained. While the complaint pleads the violation of the laws of the State of New York' and the ordinances of the city of New York, no-law has been called to our attention, nor was any ordinance proved, which Hellinger violated. The only ordinance put in evidence was section 341, which provides that “ No person or persons .shall construct or continue any cellar-door which shall extend more than one-twelftli part of any-street, or more than five feet into any street, under the penalty of one hundred dollars for each "offense.” It was affirmatively shown that this-cellar door did not extend more than one-twelfth part of the street nor more than five feet into the street. It was shown that the cellarway was covered by permanent .iron doors, which, when closed, formed a perfect protection; that the cellarway and the doors had been in existence for -upwards of thirty years; that they were in common use in the city of New York, and that'doors of similar character were to be found upon every block of the Third avenue for a mile on each side of the premises in question. . . ;

The deceased did not fall through the doors when they were closed. If they had been closed the accident would not have happened. The control of the doors was lodged exclusively- in the, defendant Davega. The cellar stairs were in actual use by an employee of-the tenant, who was proceeding up the stairs at the time of the accident. Tó enable him to get up the stairs into the street the doors had to be opened. Over the movements of this employee and the subsequent opening of the'doors the owner, of the building liad no control.

The,learned trial court charged.the following propositions to.the jury, without exception : “ The absence of bar or chain across the front of the cellar doors- and the absence of any railing at their sides did not create any liability .on the part of the defendant Tlellinger in this ease.” The basis for this charge was undoubtedly the provisions of section 342 of the municipal ordinances, which provides that “Every entrance or flight of steps projecting beyond the liue of the street and descending into any cellar or basement story of any house or other building where such entrance or flight of steps shall not be covered, shall be inclosed with a railing on each side, permanently put up, from three to three and a-half; feet high? with' a gate to open inwardly or with two iron chains across the front of the entrance-way, one near the top and one in the centre of the railing, to be closed during the night, unless there be a burning light over the steps to prevent accidents, under the penalty of twenty dollars for every offense, to be recovered from the owner, assigns or lessee thereof, severally'and respectively.” This ordinance was not formally put in evidence upon the trial, yet, nevertheless, its provisions seem to have been constantly in the mind of the court and of the parties, and to have been referred' to from time to time. Indeed, a large amount of evidence was given by the plaintiff, the only purpose of which was to show that no railing and no chain, as provided in the ordinance, were in existence, and upon constant objections being made thereto, finally, at the close of the plaintiff’s case, the counsel for the plaintiff, in the course of the discussion, said : £To save all time I will consent that you say to the jury now or at any other time that the plaintiff does not base the charge of wrongdoing.made against the defendant upon the absence of a bar or the railing in front or on the sides.” From the conduct of the case we, therefore, have a right to consider this ordinance.

. This court held in Schroeck v. Reiss (46 App. Div. 502)': ££ That those provisions of the law only apply to entrances to flights of steps which were not covered. The steps in question were covered by doors which were sufficient and proper for the purpose. The ordinance evidently refers to open flights of steps, which it requires to be protected in the. manner there indicated: It* could never have been intended that when the word ‘ covered ’ is used it was intended to refer to only those cases where the entrance or flight of steps was covered by a permanent covering, because the construction under those circumstances would be absolutely useless. The ordinance was intended to apply to flights of steps which could be used, and when entrances and flights of steps which were covered were exempted, it is evident that the provision meant to exempt those flights of steps which were covered by movable coverings, by the raising of which the steps might be made of service in connection with the basement to which they led.” ■

The court further charged: £< The cellarway in this case, when closed, was not a nuisance and the defendant Hellinger had no control over its opening oi* closing. * * * • If the jury find that the doors when closed were safe and secure, the defendant Hellingef is not liable. * * * • The consent of the municipal authorities to the construction of the cellar way. and its appurtenances is; to be • inferred in- this case. * * * There is no evidence in this case which would justify a finding that the construction pif the cellarway audits appurtenances was unlawful.” If those propositions are correct, as seems to have been conceded by" the plain tiff j then the.complaint.should have been dismissed as against the defendant Hellinger.

These propositions have the support of the following cases : Jennings v. Van Schaick (108 N. Y. 530); Babbage v. Powers (130 id. 281); Jorgensen v. Squires (144 id. 280); Schroeck v. Reiss (supra); Brady v. Shepard (42 App. Div. 24); Schubkegel v. Butler (76 id. 10).

It, therefore, appearing that this cellarway having been created by the permission.of the municipal authorities and as built was provided with doors which completely covered and protected it, "it was not a nuisance so far as. the landlord was concerned. '

As stated in Babbage v. Powers (supra) consent of the municipál authorities and a compliance with the provisions as -to the method of construction — in tins case not extending five feet beyond the building line and being covered with doors:—relieved the owner from the imputation of trespassing in doing the act consented to ■ and place him in the position of one liable for negligence only. That negligence would' be the leaving of the celiarway open and unguarded. As the landlord had no control of the; cellarway the act of. the tenant by his employee, who was actually using the cellar steps and in order to do so had the doors open, could not be imputed to the owner, - •

We, .therefore, think that the motion to dismiss as¡ to the defendant Hellinger should have been granted. The judgment and order ' should, therefore, be reversed and a new trial ordered,'with costs to the appellant to abide the event.

McLaughlin, Houghton and Scott, JJ., concurred.

Ingraham, J. (concurring):

I concur with Mr. Justice Clarke in-the reversal of this judgment, The case was tried throughout upon the assuiinption that the action was to recover for a nuisaiice and was not based upon negligence. The court instructed the jury that “ since this is an action for nuisance, it is not necessary for the plaintiff to show, in the. first instance, the lack of contributory negligence "on the part of the deceased. The deceased had a right to presume the street was safe. Of course, if his death was due to intoxication, and not to the alleged improper use of the premises, you will find for the defendants.”

The question of plaintiff's contributory negligence, therefore, was not considered important by the court, because it was assumed that the action was based upon the.maintenance of a nuisance. To justify a verdict against either defendant, therefore, it was necessary to prove that this stairway, covered as it was with an iron covering, was an unauthorized use of the public street.

The length of time the cellar stairway, covered as it was, had been in use justified the presumption that it was under a license by the municipal authorities. It was within the area line, and was, therefore, not a violation, of section 341 of the revised ordinances, which seems to be the only ordinance to which reference was made in the testimony.

There is, therefore, no evidence to justify a finding that any nuisance was maintained upon the premises. If this cellar stairway was negligently left unguarded, a cause of action would undoubtedly arise in favor of one injured; but that would only be against the person responsible for such negligence. Upon the theory under which the case was tried this question of negligence .was not presented ; but upon no theory could the landlord be liable for a negligent use of this cellar stairway by the tenant.

In no aspect of the case, therefore, can it be said that there was any cause of action proved against the landlord or the tenant, and I think that the judgment against both defendants should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  