Wolf v. . Kilpatrick

*149 Finch, J. The defendants who appeal were shown to be the owners of premises which had vaults for the storage of coal extending under the .sidewalk. The plaintiff was in jured by a defect in the stone supporting the cover of the opening which arose while such premises were in the occupation of one Macpherson and others who were tenants having entire control of the premises.- The defect was not one of original construction, but occurred through the act and interference of third persons engaged in building the elevated railway, and who broke the stone supporting the iron cover so that it turned under plaintiff’s weight and occasioned the injury. We do not know at what time, prior to the accident, the defendants became owners. The building and the vault, were constructed by Macpherson, and if, at the time, the appellants were owners, and responsible for the work actually done, it is still established that the vaults were built under a permit from the city and in accordance with that license. The coal-hole and its cover were safely and properly constructed, and in the usual and permitted manner. The case is not, therefore, within the doctrine of Clifford v. Dam (81 N. Y. 52), and the kindred authorities cited by the respondent. In that case no permission or license from the municipality to make the excavation was either pleaded or proved, and the construction of the vaults-was an unauthorized wrong and a nuisance, for the consequences of which the owner was responsible irrespective of the question of negligence. There was the same lack of special authority in most of the other cases to which we are referred. (Anderson v. Dickie, 1 Robt. 238; Dygert v. Schenck, 23 Wend. 445, 446; Congreve v. Morgan, 18 N. Y. 75, 84.) For is the case one in which the owner or landlord has let the premises when in a defective and dangerous condition (Davenport v. Ruckman, 37 N. Y. 568), for the proof establishes no such ground of liability. The evidence does not disclose the.preciselegal relation existing between the occupants and owners. The former were tenants of some kind, although it does not appear that any rent was reserved or paid to the owners, or that the latter were ever in possession at all. On the contrary, Macpherson testified that *150 from the time he built the houses, which was in 1857, to the time of the accident he had the care and control of the premises both as owner and occupant. So that the recovery must stand, if at all, upon the sole ground that an owner, -who has constructed vaults under the sidewalk lawfully and with due prudence and care, and transferred possession of the premises, if he ever had it, to third persons without covenant on his part to repair, is liable for a defect in the vault covering which afterward occurs through the interference of a stranger, although he may have had neither notice nor knowledge of the defect. The court went so far in the case as to charge that “if the plaintiff sustained injury by reason of the defective condition of said coal-hole and without contributory negligence that said defendants Kilpatrick are liable in damages,” to which there was an exception. The court was asked to charge “ that notice of the alleged condition of the coal-hole must have been given to the Kilpatricks before they could be held liable as owners, when the possession was in Maepherson and that “ if Maepherson was in the control and care of said premises, and deriving all the benefit therefrom, he alone is liable to the plaintiff.” These requests were refused, and the appellants excepted. The basis on which the case was sent to the jury was still more clearly developed in the course of the charge. After stating the liability of the city as founded upon negligence, and involving notice, actual or constructive, of the alleged defect, the learned court added: “ The law is a little more severe with respect to the owners of the premises for whose benefit this hole in the sidewalk has been authorized. It holds them to a stricter liability; a party injured by falling through any coal-hole in the sidewalk is not bound in the case of the owner of the premises to show that the owner had notice that the hole was out of repair. It appears, according to the current of decisions, that the owner of the premises is bound to see that the coal-hole and cover over it affords just as safe a passage to the wayfarer as any other portion of the sidewalk. Therefore, the question with respect to these defendants who are the owners of the property is simply how much they should be re *151 quired to pay the plaintiff.” The doctrine of the trial court was thus made extremely plain. It went upon the ground that the defect in the vault-stone was a nuisance for which the vault owner was responsible, though out of possession and control, without the least knowledge of the fact, and when the defect was produced by the interference and misconduct of strangers. It may be that the condition of the coal-hole in the sidewalk became a nuisance, while Macpherson was in possession, and after the stone was broken. (Swords v. Edgar, 59 N. Y. 28, 34.) But if so, the party responsible can only be the person who either creates the nuisance, or suffers it to continue. The owners did not create it; that was the wrongful act of strangers. How can it be said that they suffered it to continue and so failed in their duty if they had no knowledge, actual or constructive, of the defect, and were out of possession and control % That can only be true on the theory that every owner of rented property in Hew York is bound to watch the sidewalks and coal-holes in front of his premises and protect them against unauthorized trespasses, and is bound to know when such a trespass is committed. We are aware of no case which goes so far as that. In Swords v. Edgar (supra), the premises were a pier upon which the public having business were invited to go, and which became dilapidated whereby injury arose. That condition was denominated a nuisance for which, primarily, the lessee in the actual occupation was liable; and he was held to be so liable independent of any covenant to repair and solely by force of the occupancy. But it was also held that the lessors were liable, and upon the ground that the pier was unsafe when demised, and they took a rent for it in that condition. The whole drift of the opinion shows that the landlord out of possession is not responsible for an after-occurring nuisance unless in some manner he is in fault for its creation or continuance. His bare ownership will not produce that result. It was said in Clifford v. Dam (supra), that proof of authority from the municipality to build the vault would mitigate the act from an absolute nuisance to an act involving care in the construction and main *152 tenance. In Clancy v. Byrne (56 N. Y. 129, 133), it was held that if the premises are in good repair when demised, but afterward become ruinous and dangerous, the landlord is not responsible therefor either to the occupant or the public, unless he has' expressly agreed to repair or has renewed the lease after the need of repair has shown itself. In the recent case of Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245, 248) the circumstances under which the landlord may become liable are very fully considered with the declared result that “ the responsibility of the landlord is the same in all cases. If guilty of negligence or other delieium which leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him.” It is quite certain then that the plaintiff in this .ease was bound to establish some fault of omission or commission on the part of the landlord leading to the injury, and barely showing him to be owner is not enough. There was no fault of commission. That is conceded. There could be no fault of omission unless the landlord was bound to repair the defect, had actual or constructive notice of its existence, or was bound at his peril to discover and remedy it. Ho such duty rested upon him. It was the tenant’s duty to repair the stone ; it was his neglect which left it unsafe ; and the landlord was not shown to be in any respect in fault. The charge made him liable barely from the fact of ownership, and was erroneous. The judgment should be reversed and a new trial granted, costs to abide the event. All concur. Judgment reversed.