Opinion
December 7, 1942.
The infant-plaintiff was injured by coming in contact with the end of a conveyor which projected into the travelled portion of the sidewalk and which was used in connection with a store occupied by respondent-appellant Joel Green as a monthly tenant. The building was owned by the respondent-appellant 248 Floyd Street Realty Corporation. An action founded upon negligence and nuisance to recover damages, brought against the owner and tenant by the infant, and by his mother for medical expenses, was tried together with a subsequent action brought against The City of New York by the infant only upon the theory of negligence only. In its answer The City of New York cross-claimed against the owner and tenant. From the resettled judgment in favor of the infant-plaintiff and his mother, the owner and tenant appeal. The City of New York also appeals from the resettled judgment in so far as the judgment is in favor of the infant, and also appeals from that portion of the judgment as dismisses its cross complaint. Resettled judgment in favor of the infant-plaintiff William Moody and his mother Bessie Moody, unanimously affirmed, with one bill of costs against all the defendants. Resettled judgment in so far as it dismisses the cross complaint of appellant The City of New York against Joel Green and 248 Floyd Street Realty Corporation reversed on the law and the facts, with one bill of costs, and judgment directed on the law in favor of The City of New York against Joel Green and 248 Floyd Street Realty Corporation, with costs. The 248 Floyd Street Realty Corporation leased the premises to Joel Green upon a month to month basis for a public purpose and was thus responsible for the nuisance that existed at the last letting. ( Kilmer v. White, 254 N.Y. 64, 69.) The jury must necessarily have found that the encroachment upon the sidewalk area existed at the time of the last monthly letting and that the owner failed to abate the nuisance. For this the owner as well as the tenant is primarily liable. ( Trustees of Canandaigua v. Foster, 156 N.Y. 354; Zolezzi v. Bruce-Brown, 243 N.Y. 490.) Both tenant and owner were guilty of malfeasance in that they obstructed the sidewalk without any permit. The liability of the city was based upon its failure to inspect and hence it was guilty of passive negligence. It follows that it may recover over from those who actually created the condition. ( Toth v. Kennedy Smith, Inc., 259 App. Div. 855; Doyle v. Union Railway Co., 276 N.Y. 453.) Lazansky, P.J., Carswell, Johnston, Taylor and Close, JJ., concur.