Malkan v. Carlin ( 1905 )

PER CURIAM."

Although the pleadings were oral, the action was stated to be one to recover damages “for personal injuries resulting from a nuisance established or maintained by defendants,” and was strictly tried upon the theory of a nuisance, and not for negligence. The proof introduced by the plaintiff shows that the defendants had obtained a contract from the city for the purposé of laying a sidewalk around the Tombs building, then in course of construction; that during the progress of the work of laying the sidewalk a number of flagstones were piled up near the curb, leaving considerable space between the pile and the building or house line; and that plaintiff’s injuries were caused by his stumbling over the pile of stones.

It is well settled that a temporary obstruction of the street or highway, when it appears that the act was done with the consent of the proper public authorities, and in the course of construction of a building, sidewalk, or other work, is not a nuisance. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132, 14 L. R. A. 398; Ster v. Tuety, 45 Hun, 49, 53; Boston v. Abraham, 91 App. Div. 417, 86 N. Y. Supp. 863. Upon the facts disclosed, the action was not maintainable upon the theory of a nuisance.

Judgment affirmed, with costs.