Opinion
December 1, 1911.
Clarence L. Barber, for the appellant.
Edwin S. Merrill, for the respondent.
The plaintiff has recovered a verdict for injuries alleged to have been caused by stumbling over an awning brace in front of the Colonial Theatre, between Sixty-third and Sixty-fourth streets on Broadway, as she was about to enter the theatre. A photograph of the awning is in the record, and it appears to have been the sort of awning to be seen in the city of New York in front of theatres, shops, hotels, churches and frequently in front of private residences. The complaint was framed on the theory both of nuisance and negligence, but during the trial the plaintiff elected to try the case on the theory of nuisance, and the case was submitted to the jury to find a verdict for the plaintiff in case they found that the accident happened as testified to by her; that the awning over the walk was in fact a nuisance, and that the city had notice of it, express or implied. It is unnecessary to determine whether the awning, if unauthorized, was a nuisance, for the city had not created and did not maintain it. The liability of the city for failure to remove obstructions in the streets depends upon its negligence. It is plain that the city could have authorized the maintenance of this structure (Greater N.Y. Charter [Laws of 1901, chap. 466], § 50, as amd. by Laws of 1905, chap. 629; Hoey v. Gilroy, 129 N.Y. 132), and it cannot be held liable on the theory of authorization by acquiescence, even if mere acquiescence were otherwise sufficient.
If the awning were dangerous to pedestrians using the sidewalk, the city might be held liable for negligence in failing to cause its removal. ( Hume v. Mayor, 74 N.Y. 264.) Awnings like the one involved in this suit serve a convenient and useful purpose. We know that they are in common use in New York city, and, so far as appears by this record, no accident has heretofore resulted therefrom. The municipality is not obliged to remove every obstacle from the sidewalk, but only those from which danger may reasonably be apprehended. ( Dubois v. City of Kingston, 102 N.Y. 219.) We think that the plaintiff failed to establish liability on either theory.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and DOWLING, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.