Friedman v. City of New York

PER CURIAM.

The plaintiff appeals from a judgment dismissing the complaint on the merits at the close of the whole case. The city of New York issued a permit to the defendants Bloom & Shapiro to place building materials in front of No. 109 Lewis street. Bloom & Shapiro placed certain boards on the sidewalk in front of No. 109 Lewis street. The plaintiff struck his foot against one of the projecting boards, and fell, and sustained injury.

The theory of the plaintiff’s case is that the boards constituted a nuisance. The boards were merely a temporary obstruction of the sidewalk, and the city had power to authorize its existence during the alteration of the building of Bloom & Shapiro. This obstruction, having been erected with the consent of the city and under its license, must be regarded as being governed by the principles of the law of negligence, and not the law of nuisance. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132, 14 L. R. A. 398. The city was not liable under any circumstances, as no evidence was given to show notice to it of the defective condition of the street where the boards were, and because it was not in any way responsible for placing these boards upon the street. The complaint was, therefore, properly dismissed as to the city.

The trial justice, however, should not have dismissed the complaint .as against the other defendants. There was evidence sufficient to go to the jury on the question of the plaintiff’s freedom from contributory negligence, especially in view of the fact that he is 87 years of age. There was also sufficient evidence to go to the jury upon the question of the negligence of the defendants Bloom & Shapiro in failing to keep the street reasonably free from obstructions; nor could these defendants free themselves from such a duty by showing that the work was being carried on by an independent contractor, who appears to have been more or less under their supervision.

The Court also erred in its exclusion "of evidence as to other people "having fallen at the same place at about the same time, because this was material upon both the negligence of these defendants and plaintiff’s contributory negligence.

The judgment should be. affirmed, in so far as it "provides for the ■dismissal of the complaint as against the city of New York, with costs . to the city, but reversed in so far as it provides for the dismissal of the complaint as against the defendants constituting the firm of Bloom & Shapiro, and a new trial ordered, with costs to appellant to abide •.the event.