Hubbs v. Schwaneflugel

Hooker, J.: The plaintiff claims that the defendants were guilty of maintaining a nuisance by authorizing and permitting a trench to remain open across the city sidewalk in front of premises owned by them., The plaintiff fell into this trench and was injured. He appeals from a judgment in favor of the defendants, rendered upon a verdict of no cause of action, and from an order denying his mqtion for a new trial. The judgment and order must be reversed for the error in permitting evidence of a permission from the city for the opening of the sidewalk. Such permission was not pleaded, and plaintiff objected to its reception upon that, among other grounds. It cannot be successfully contended that this permit did not have weight with the jury. The gist of the action is similar to Clifford v. Dam (81 N. Y. 52), and the rule there announced governing the admissibility of [605] this character of evidence, in the absence of an allegation in the answer, should have controlled the court below in the trial of this action. Similar questions have been raised in this court since the decision in the Clifford case, where the ruling there has been followed. (Brown v. Metropolitan St. R. Co., 60 App. Div. 184; affd., 171 N. Y. 699 ; Holroyd v. Sheridan, 53 App. Div. 14.) The judgment and order must, therefore, be reversed and a new trial ordered, costs to abide the event. Bartlett, Woodward and Hirschberg, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.