Opinion
June Term, 1900.
W.C.D. Wilson, for the appellant.
Thomas O'Connor, for the respondent.
That these premises were leased by Sheridan to Dwyer is admitted by the pleadings. If, then, the existence of this structure with the doors swinging over the walk constitutes a nuisance, the defendant Sheridan is liable equally with the defendant Dwyer. ( McGrath v. Walker, 64 Hun, 179; Timlin v. S.O. Co., 126 N.Y. 514.)
That this construction constitutes prima facie a nuisance seems to us clear. It hazarded the use of the sidewalk by those who had a right to its free use without peril. Whether the injury occurred by negligently permitting the wind to blow open the doors or by negligently throwing back the doors, the improper construction of the doors that could be thus negligently made a cause of injury to those lawfully using the walk would seem to be an infringement of the rights of the public and a wrong.
In McGrath v. Walker (64 Hun, 182) a pit in the sidewalk was held to be a nuisance because it imperiled the safety of travelers. In Congreve v. Smith ( 18 N.Y. 82) it is said: "The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it or renders its use hazardous, by doing anything upon, above or below the surface, is guilty of a nuisance; and as in all other cases of public nuisance, individuals sustaining special damage from it without any want of due care to avoid injury, have a remedy by action against the author or person continuing the nuisance."
In Tinker v. N.Y., Ontario Western R. Co. ( 157 N.Y. 318) Chief Judge PARKER, in writing for the court, says: "The primary purpose of highways is use by the public for travel and transportation, and the general rule is that any one who interferes with such use commits a nuisance. Indeed, the statute declares it to be a public nuisance and a crime against the order and economy of the state to unlawfully interfere with, obstruct or tend to obstruct a street or highway. (Penal Code, § 385.)"
The defendant has alleged no permission of the municipal authorities authorizing this construction, and without that allegation none can be proven. ( Clifford v. Dam, 81 N.Y. 53; Irvine v. Wood, 51 id. 228.)
The trial court, therefore, improperly dismissed the complaint as against the defendant Sheridan.
All concurred, except PARKER, P.J., and EDWARDS, J., dissenting.
Judgment reversed on the law and facts and new trial granted, with costs to appellant to abide the event.