Opinion
June, 1894.
L.A. Gould, for appellant.
James W. Perry, for respondent.
It is impossible to construe the complaint otherwise than as asserting a right of recovery for injury from a nuisance. The imputation of negligence in the maintenance of the awning is ineffectual to alter the nature of the action, for negligence may be an indispensable element in the constitution of the nuisance. People v. Sands, 1 Johns. 78; Simmons v. Everson, 124 N.Y. 319; Campbell v. U.S. Foundry Co., 73 Hun, 576. There was, therefore, no alternative of claims between which the plaintiff was compellable to elect; but, as he chose to stand on the ground of nuisance, the cause of action propounded by the complaint, the ruling of the learned trial judge was of no prejudice to him.
According to the plaintiff the benefit of every favorable inference from the evidence ( McNally v. Ins. Co., 137 N.Y. 389), his right of recovery is clear and incontestable. The awning was maintained by the defendant; was suspended over a public highway; was in an insecure condition, and so a menace to pedestrians on the sidewalk; it fell from its own infirmity, and inflicted the wound on the plaintiff. These facts the jury might have collected from the evidence, and in combination they constitute an unimpeachable cause of action for injury from a nuisance. Vincett v. Cook, 4 Hun, 318; Simmons v. Everson, 124 N.Y. 319; Bohan v. Co., 122 id. 18, 26; Walsh v. Mead, 8 Hun, 387; McConnell v. Bostelmann, 72 id. 238; Salisbury v. Herchenroder, 106 Mass. 458; Ahern v. Steele, 115 N.Y. 203, 209; Irvine v. Wood, 51 id. 224, 228.
But, argues the appellant, he had a license from the city to maintain the awning, and hence it was not a nuisance. The awning simply, no; but its dilapidated and unsafe condition was the nuisance; and for that the defendant neither had nor could have a municipal license. Irvine v. Wood, 51 N.Y. 224, 228.
Again, the appellant contends that the city only is responsible for the condition of its streets ( City of Rochester v. Campbell, 123 N.Y. 405), but the awning was upon defendant's premises, although the peril to the public was from its projecting over the highway. McConnell v. Bostelmann, 72 Hun, 238.
Still further, appellant insists that notice of the nuisance should have been brought home to him; but, if that were necessary, the evidence was ample to justify the conclusion that he had information of the decay of the awning. Nay, more, that he himself maintained it in its dangerous condition is an obvious inference from the first paragraph of his answer, in connection with the undenied allegation of the complaint.
We see no escape from a reversal of the judgment.
Judgment reversed and a new trial ordered, costs to abide the event.
BOOKSTAVER and BISCHOFF, JJ., concur.
Judgment reversed and new trial ordered, costs to abide event.