Ornstein v. Unterman

BIJUR, J. Plaintiff, an infant of 14 years, sues, by his guardian ad litem, for personal injuries resulting from the falling down—that is, closing—of the iron cover of a cellarway appurtenant to premises of the defendant. The cellarway was in a public street. The learned judge below correctly charged that the long-continued use of this 637 cellarway led to the presumption that it had been licensed by the city, and that the question, therefore, to be determined, was whether it had been carefully constructed and carefully maintained—evidently following the language of our decision in Hartman v. Lowenstein, 90 Misc. Rep. 686, 154 N. Y. Supp. 205. He further charged, however, that the negligence claimed against the defendant “is that it permitted one of these doors to he open and not properly guarded,” etc. The point was repeatedly urged by defendant’s counsel that, “before defendant could he held responsible, the jury must be satisfied that the defendant had notice that this cellar door was open,” and to the refusal to so charge the defendant took due exception. There was no direct proof in the case that the door had been opened by the defendant, and none from which that fact could be inferred. Nor was there any proof that, assuming the door had been opened by some third party, defendant was aware of the fact, or that the condition had existed a sufficient length of time to charge him with constructive notice. While it is quite true that, if any one of the forms of negligence just indicated had been proved as against defendant, the action might still have been maintained as upon nuisance, because the condition thus negligently brought about existed in a public street, nevertheless such negligence must have been proved as in any other case. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132, 14 L. R. A. 398; Wolf v. Kilpatrick, 101 N. Y. 146, 152, 4 N. E. 188, 54 Am. Rep. 672; Sanford v. White, 150 Fed. 724, 80 C. C. A. 390; Maldosky v. Bank, 127 N. Y. Supp. 292. See, also, Nolan v. King, 97 N. Y. 565, 49 Am. Rep. 561. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.