BISCHOFF, J. The complaint alleged that on January 22, 1892, in the city of New York, the plaintiff sustained personal injury from a fall into a vault or cellar opening in the sidewalk in front of certain premises which were at the time in the possession and occupancy of the defendant respondent as lessee; that the opening was appurtenant to and used by the defendant respondent in connection with the demised premises; and that it was so used and maintained by him without lawful authority.
The action, therefore, was one to recover damages which resulted, -as alleged, from the main 181 tenance of a nuisance. That it was accompanied by allegations of the defendant’s neglect with regard to the use of the opening, and of the absence of due care in keeping it securely closed, did not constitute the action exclusively one for negligence, such allegations being relevant to the predicament of a nuisance (Morris v. Barrisford, 9 Misc.
Rep. 14, 29 N. Y. Supp. 17); and assuming that the complaint sufficiently averred a cause of action for negligence, as well as one for the maintenance of a nuisance, we can, in view of the absence of the plaintiff’s election, only then affirm the accuracy of the judgment appealed from if we find upon examination that the evidence adduced upon the trial supported neither cause.
We readily accede to the view of the learned trial judge, and the contention of the defendant’s counsel, that the evidence fell short of showing any negligence whatever, either on the part of the defendant or of his servants; and the plaintiff’s counsel does not contend to the contrary upon this appeal. It is insisted, however, that there was ample proof of the defendant’s liability for the maintenance of a nuisance.
The proof consisted wholly of the testimony of two witnesses called for the plaintiff,—herself and the defendant The plaintiff testified only to the facts of her fall into the vault or cellar opening in the sidewalk in front of the premises occupied by the defendant, the condition of the covering at the time, and the resultant injury to her.
Thereupon the defendant testified, and he remained uncontradicted, that he did not construct the opening in the sidewalk, and that it existed at the time he went into possession of the premises, which was one year before the accident complained of.
He also admitted that he was at the time of the accident, and for the whole of the year immediately preceding, in the possession and occupancy of the premises, and that during that time he had availed himself of the use of the opening in the sidewalk for the storage of coal in the cellar of the premises occupied by him.
Unquestionably the construction or maintenance of the opening in the sidewalk without lawful authority was a nuisance, and for any damage resulting therefrom to another the person who created, as well as the one who knowingly maintained, the nuisance, was answerable.
Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, Id. 84; Irvine v. Wood, 51 N. Y. 224; Clifford v. Dam, 81 N. Y. 52; Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193; Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132; Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373.
Neither was the lessee or occupant of the premises to which the nuisance was appurtenant absolved upon showing merely that the nuisance "was created by his lessor, the owner, or another, if at the same time it appeared that he knowingly acquiesced in its existence or maintenance; and such acquiescence was sufficiently apparent from the lessee’s or occupant’s use of the nuisance.
Wood, Nuis. p. 80, § 77; Cooley, Torts (2d Ed.) 724; Shear. & R. Neg. §§ 56, 361; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193; Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373; Irvine v. Wood, 51 N. Y. 224; Wasmer v. Railroad Co., 80 N. Y. 212; McParthand v. Thoms (City Ct. Brook.) 4 N. Y. Supp. 100; Blunt v. Aikin, 15 Wend. 522; Irvin 182 v. Fowler, 5 Rob. (N. Y.) 482; Irvin v. Wood, 4 Rob. (N. Y.) 138; Vedder v. Vedder, 1 Denio, 257; Waggoner v. Jermaine, 3 Denio, 306; Brown v. Railroad Co., 12 N. Y. 486.
Proof of municipal consent to the maintenance of the opening in the sidewalk, however, relieved the opening of its character as a nuisance. Irvine v. Wood, 51 N. Y. 224; Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424; Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132; Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373.
It did not appear in the case at bar, from any municipal ordinance or from any statute, that such a consent was required to be in writing, and an oral consent, therefore, was sufficient Such oral consent appeared inferentially from the fact that the existence of the opening was notorious for upwards of one year before the accident, and continued uninterruptedly and without objection. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132.
Notwithstanding the defendant’s omission to plead a municipal consent (Irvine v. Wood, 51 N. Y. 224), we think the fact was available to him under Ms denial of the plaintiff’s allegations that the opening in the sidewalk was “wrongfully and unlawfully” maintained, and that she sustained her injury from the “wrongful” acts of the defendant “It was not a defense necessary to be pleaded.
It went to the root of the cause of action, and tended to show that there never had been any liability on the part of the defendants. It was not an affirmative defense which in substance admitted an original cause of action, but showed facts which operated as a satisfaction thereof. It was not like a defense of payment, or a release, or an accord and satisfaction.
If operative, it showed there never had been any liability, and hence it was admissible under the defendant’s denial of any liability, as set out in the complaint.” Demarest v. Flack, 128 N. Y. 205, 28 N. E. 645. The judgment should be affirmed, with costs. DALY, C. J., concurs.
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