Irvine v. . Wood

Earl, C. Ho one appeared upon the argument for defendant Fowler. He seems to have abandoned his appeal; and hence, as to him, the judgment must be affirmed by default, ’ with costs. It remains, therefore, simply to be considered whether the judgment can properly be upheld against the defendants Wood. *228 These defendants did not allege, in their answer, that the coal-hole was constructed by any license from the proper city authorities. They simply put in issue the allegations in the complaint as to the condition of the hole, and their conduct in reference to it; and they did not ask the court to submit to the jury the question whether the coal-hole, and the cover over it, were constructed under a permit from the proper city authorities. Hence they are not in a position to claim here that the hole was authorized by competent authority. It may, then, be treated as a nuisance, being an unauthorized excavation in the street; and all persons who continued or in any way became responsible for it were liable to any person who might be injured thereby while traveling upon the street, irrespective of any question of negligence on their part. (Congreve v. Smith, 18 N. Y., 79; Congreve v. Morgan, id., 84; Creed v. Hartman, 29 id., 591.) In such cases the wrong consists not in any negligence, but in making or continuing the wrongful excavation in the street. But here there was proof that the cover to the hole was in an imperfect condition; that it was not properly fastened. This was not, upon the trial, disputed by the defendants Wood. But they claimed and offered to show that the cover was originally imperfectly constructed; and they claimed immunity because the imperfection was not caused by or known to them. Even if this hole was excavated on the street by permission of competent authority, the persons who originally excavated it were bound to do it in a careful manner, and to see that it was properly and carefully covered, so as not to be perilous to travelers upon the street. They could get from the city authorities no license for carelessness. For in such case the city itself would be liable for the carelessness of its officers. (Barton v. City of Syracuse, 36 N. Y., 54.) And this liability attached not only to those who made the excavation, but to those who continued and used it in its improper and unsafe condition. If the defendants would use this hole as an appurtenance to their premises, it was their *229 duty to see that it was in proper repair; and they could not shield themselves from responsibility by claiming that their attention was not called to its imperfect condition. It was near their store, in plain view, and it was carelessness for them to occupy the store for months and to use the hole, which if not properly covered was dangerous to travelers, and not examine into and know its condition. It was their duty to know its condition, and they must be held to the same responsibility as if they had actually known it. In McCarthy v. The City of Syracuse (46 N. Y., 194), the action was to recover damages against the city, sustained by the plaintiffs, because a sewer was out of repair, and it was held that no notice to the city of the defect in the sewer was necessary to fix its liability. The learned judge, writing the opinion, says: “ Its duty to keep its sewers in repair is not performed by waiting to be notified by citizens that they are out of repair and repairing them only when the attention of the officials is called to the damage they have occasioned by having become dilapidated or obstructed; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time and preventing them from becoming dilapidated or obstructed.” The same rule of active diligence should be applied to the persons who own or control and use coal-holes or other excavations in or under the streets of any city or village. We are therefore brought to the same conclusion, whether we treat this hole as made and continued in the street without proper authority and hence an absolute nuisance, or whether we treat it as made and continued under proper authority and permitted to be and become out of repair. This hole was clearly appurtenant to the premises leased by the defendants Wood. It communicated with their cellar and was used for access to it with coal. It matters' not, if it be true, that other occupants of the premises could also rise it. There is no proof that any one else did use it. They adopted it as appurtenant to their premises and used it, and this made them responsible for it. (Brown v. Cayuga & S. *230 R. R. Co., 12 N. Y., 486; Blunt v. Aikin,, 15 Wend., 522; Davenport v. Ruckman, 10 Bosw., 20.). Each one of several persons who continue a nuisance is responsible for it, and he may, as in all cases of wrong, be sued alone or with the other wrong-doers. It is claimed that these defendants had no right to abate the nuisance, and hence should not be made responsible for its continuance. If it was in the street without authority, and hence an absolute nuisance in front of their store, they did have the right to abate it. They could have filled up the hole, of .covered it over with solid masonry. If the hole was property and rightfully there, they could escape responsibility by putting and keeping a proper cover over it. Hence I can perceive no reason upon the undisputed facts of the case for not holding the defendants, Wood, responsible for the damages occasioned by this nuisance. So long as they were thus responsible, they have no just ground of complaint that their landlord has also been held liable with them. But there can be no doubt that they were pfoperty sued together. The landlord rented the nuisance and took rent for it. The tenants used it and paid rent, and hence they must all be considered as continuing and responsible for the nuisance. (King v. Pedley, 1 Adol. & Ellis, 822; Anderson v. Dickie, 26 How. Pr. R., 105; People v. Erwin, 4 Den., 129.) These views cover all the points argued on behalf of the appellants, and call for an affirmance of the judgment, with costs. All concur. Judgment affirmed.