James v. E. C. Roberts Co.

Cuff, J. A fence was erected at Canal street and Bowery. Decedent, standing in the highway, was killed by a passing auto [649] mobile. Plaintiff seeks to hold the builder of the fence on the ground that the obstruction of the sidewalk by defendant was so unreasonable and unnecessary that it amounted to negligence or that the fence was a nuisance. I do not find in the complaint an allegation that decedent was at the point on the highway where he was struck because of the presence of the fence. In other words, he does not say in effect that the existence of the fence, obstructing his reasonable and proper use of the sidewalk as a pedestrian, was the cause of his going, or being forced to go, into the highway. Plaintiff charges that defendant violated its duty in erecting the fence, but he does not connect that alleged act of negligence with the incident that brought about the death of decedent. Motion granted, without prejudice to plaintiff to amend within twenty days.