CHURCH, Ch. J.

The only questions which seem to have been raised by proper exceptions on the trial, relate to the rejection of evidence of a permit to make the excavation and construct the coal hole. The defendants' counsel asked a witness whether he recollected obtaining any privilege to put vaults under the sidewalk adjoining the hotel. This was objected to on the ground that no license had been pleaded, and because immaterial and irrelevant. It was then offered to show that the usual permit had been obtained from the proper authorities in the city of New York authorizing the construction of the vaults under the sidewalk with the openings therein. The witness stated that the permit was in writing, and it was further objected that it should be produced. The court then said: "I exclude the proposed evidence." The evidence might have been excluded upon the ground that the best evidence should be produced, but taking what occurred, especially in connection with the charge (which was not properly excepted to), it is fair, I think, to assume that the court intended to reject the evidence as incompetent, because not pleaded, or as immaterial. We are of opinion that it should have been pleaded, and concur with the General Term. The public are entitled to an unobstructed passage upon the streets, including the sidewalks of the city, but a structure such as that proved in this case was an obstruction. It was sufficient for the plaintiff to prove that, in passing along the sidewalk, he was injured by this structure which was appurtenant to defendants' premises. It was not necessary to prove negligence. The action was not based upon negligence, but on a wrongful act, for which the defendants were responsible. If a permit was material the effect of it would only be to mitigate the act from an absolute nuisance, to an act involving care in the construction and maintenance; and to justify such a structure, it would be necessary not only to plead it, but also to allege and prove a compliance with its terms, and that the structure was properly made and maintained, to secure the same safety to the public, that the sidewalk would have secured without it. When permission is given, by a municipal authority, to interfere with a street solely for private use and convenience in no way connected with the public use, the person obtaining such permission must see to it, that the street is restored to its original safety and usefulness. Whatever the plaintiff is required to prove to establish his cause of action, the defendant may disprove under a general denial. This is the general rule. Applying that rule it is quite clear that the plaintiff was not bound to prove, in the first instance, any thing except the existence of a hole in the sidewalk for which the defendants were responsible, and that in passing along the sidewalk he fell into it. It was not even necessary, in the first instance, that he should prove a want of contributory negligence, for the reason that the action is not founded upon negligence, but upon a wrongful act. If there was any justification for the act, it was incumbent upon the defendants to allege and prove it. If the plaintiff caused the injury himself, as if he voluntarily jumped into the hole, he could not recover; but he was bound to no special care to avoid such an accident. The public have a right to assume that these structures are as safe as any other portion of the sidewalk.

The case proved was amply sufficient to warrant the verdict, which was not excessive, and no legal error was committed, justifying a reversal of the judgment, and it should be affirmed.

All concur, except MILLER, J., absent; FOLGER and EARL, JJ., concurring in result.

Judgment affirmed.