
    Ellas Wasson, Resp’t, v. John Pettit, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    
      1. Nuisance—Action fob damages—Negligence need not be proved.
    In order to sustain an action for damages sustained by reason of a public nuisance, it is not necessary to prove negligence upon the part of the person sought to be charged. The action proceeds upon a very different theory from that which governs actions based upon a liability founded upon negligence.
    2. Negligence—Landlord and tenant—When landlord is liable for DAMAGES SUSTAINED BY REASON OF NEGLECT—CONDITION OF PREMISES.
    This action was brought to recover damages for injuries sustained by the plaintiff in falling down the landing to the cellar of the defendant’s building. At the time of the accident the building was in the process of repair. The defendant had let out the basement and cellar to which the steps led, and the tenants had sublet. The defendant assumed the charge and custody of the building and its surroundings and employed a watchman to take care of the building. He had also erected guards around the entrance to the cellar. Feld, that if the defendant was not in possession of the stairway but it belongs to the tenant, and that it was because of the tenant’s acts that the accident happened, that the defendant would not be liable. But from the facts, as it appeared that the defendant had retained the control of the approaches and had not surrendered the same to his tenants, and had assumed the protection as to the steps, he is liable.
    Appeal from judgment entered on the verdict of a jury and from an order denying motion for a new trial.
    
      Treadwell Cleveland, for app’lt; L. J. Conlan, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for injuries sustained by the plaintiff in falling down certain steps leading to the cellar of a building owned by the defendant.

It appears that at the rime of the accident the building was in process of repair, and such repairs had been partially completed, and that the defendant had let out the basement or cellars to which the steps in question led, to a tenant, and such tenant had let out a portion thereof to a sub-tenant.

It further appears that, notwithstanding this letting, the defendant assumed the charge and custody of the building and its surroundings, as the evidence shows that he employed a watchman to take care of the building, and that he had erected guards around this entrance to the cellar.

It appears from the evidence that this cellar entrance encroaches upon the sidewalk, and by the maintenance thereof the defendant maintains a nuisance in the street, and if the action had been brought for damages received by the plaintiff, on account of the maintenance of this nuisance, no question would arise, such as is presented, because of the form of action brought by the plaintiff, which is based upon the allegation that the defendant has been guilty of negligence. In the case of the maintenance of a public nuisance whereby injury results, it is not necessary to prove negligence upon the part of the person sought to he ■charged, and the action proceeds upon a very different theory from that which governs actions based upon a liability founded upon negligence.

In the case at bar the defendant seeks to avoid his liability upon two grounds: First, that having let the basement and its approaches to a tenant he was not further responsible for their condition, and second, that the defendant had taken due care in the guards which had been placed around the approach to the cellar, and that those guards were interfered with without his knowledge, and that so little time elapsed from the time of such interference that he could not be presumed to have notice of the fact that by such interference the approach had been rendered dangerous.

It is urged upon the part of the defendant that there was no proof whatever which justified the submission to the jury of the question of the negligence of the defendant. It may be true that there was no direct conflict of evidence, but there was a conflict as to the manner in which this opening was guarded, arising from the very circumstances of the happening of the accident.

It was claimed upon the part of the plaintiff that if this opening had been guarded in the manner claimed by the defendant, the accident could not possibly have occurred, and this seems to have been the view which the jury took of the question.

The accident having occurred and the jury having found that it could not have occurred if the guards had been placed in the position claimed upon the part of the defendant, a necessary inference of negligence arose for which the defendant was responsible. Where an inference is to be derived from any evidence whatever, it is the province of the jury to draw such inference and the court cannot arrogate to itself that privilege. The question as to the liability of the defendant and his negligence was carefully submitted to the jury by the learned judge who presided at the trial, and although it is claimed upon the part of the appellant that he was mistaken in saying that there was an antago nism between the plaintiff and defendant upon the facts as developed by the evidence, yet such want of antagonism does not appear but on the contrary it is evident that what the learned judge meant to say was that there was an antagonism existing from the fact of the happening of the accident and the nature of the protection claimed to have been taken to prevent such accident. There seems therefore to have been a question upon which the jury had a right to pass and that having passed upon this question against the defendant this court should not even if it had the inclination interfere.

This brings us to the second ground upon which the defendant bases his claim of error ; and that is that the defendant was hot in possession of the stairway in question but it belonged to the tenant and it was because of the tenant’s acts that the accident happened. If this were true it would be an answer to the claim made by the plaintiff against the defendant because of the happening of this accident. But it appears, from the evidence that the defendant remained in possession of the approaches of this building. He assumed the care of guarding them; his watchmen were looking out for the safety of the whole building including the stairways in question, and having retained the control of the approaches he had not surrendered the same to his tenants and having assumed the protection of the steps, his liability for his negligence arises in case such protection is faulty.

We do not find therefore any error which calls for a reversal of the judgment, and it should be affirmed,

Daniels and Brady, JJ., concur.  