Clemens v. Bretz

Appellate Terms of the Supreme Court of New York

Clemens v. Bretz

149 N.Y.S. 855

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 19, 1914

StatusPublished

This text of 149 N.Y.S. 855 (Clemens v. Bretz) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clemens v. Bretz, 149 N.Y.S. 855 (N.Y. Ct. App. 1914).

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Opinion

BIJUR, J.

This action was brought to recover damages for personal injuries to a boy who at the time of the accident was 5% years old. Defendant was the owner of a tenement house. In front of this house and on the public sidewalk were two iron doors, which, when opened, disclosed a stairway leading to the cellar of the house. On either side of the doors was an iron railing, which prevented pedestrians from walking over the doors in passing over the sidewalk. The show window of the house projected a foot or more over these doors, and under the show window was an opening, 15 inches high and 42 inches wide, which had been cut by the defendant or was maintained by him for the pur- . pose of ventilating the cellar. This was not protected in any way. The infant, while playing with other children on the iron doors, backed, or was pushed, through the opening, and fell into .the cellar, receiving injuries for which damages are sought. The cellar doors had been in their then position on the sidewalk for some 17 years. Defendant knew that children were in the habit of playing on the cellar doors.

At the close of the case, the learned trial judge required plaintiff to . elect whether he was proceeding on the theory of nuisance or negligence. Plaintiff excepted, and then elected to proceed upon nuisance. Defendant’s motion to dismiss having then been renewed, plaintiff asked that the case be submitted to the jury on all questions involved; . but the latter motion was denied, and the motion to dismiss granted, to which plaintiff took due exception. I think it was error to dismiss the complaint.

The question on this appeal is whether, if the jury determine the opening to be a dangerous one, defendant can be held liable in nuisance for maintaining it, not in or upon the public highway, but so near to it that persons using the highway in ordinance course are likely to receive an injury therefrom. This point was determined adversely to defendant in McNulty v. Ludwig & Co., 153 App. Div. 206, particu-. larly at 209 and 210, 138 N. Y. Supp. 84.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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BIJUR, J.

This action was brought to recover damages for personal injuries to a boy who at the time of the accident was 5% years old. Defendant was the owner of a tenement house. In front of this house and on the public sidewalk were two iron doors, which, when opened, disclosed a stairway leading to the cellar of the house. On either side of the doors was an iron railing, which prevented pedestrians from walking over the doors in passing over the sidewalk. The show window of the house projected a foot or more over these doors, and under the show window was an opening, 15 inches high and 42 inches wide, which had been cut by the defendant or was maintained by him for the pur- . pose of ventilating the cellar. This was not protected in any way. The infant, while playing with other children on the iron doors, backed, or was pushed, through the opening, and fell into .the cellar, receiving injuries for which damages are sought. The cellar doors had been in their then position on the sidewalk for some 17 years. Defendant knew that children were in the habit of playing on the cellar doors.

At the close of the case, the learned trial judge required plaintiff to . elect whether he was proceeding on the theory of nuisance or negligence. Plaintiff excepted, and then elected to proceed upon nuisance. Defendant’s motion to dismiss having then been renewed, plaintiff asked that the case be submitted to the jury on all questions involved; . but the latter motion was denied, and the motion to dismiss granted, to which plaintiff took due exception. I think it was error to dismiss the complaint.

The question on this appeal is whether, if the jury determine the opening to be a dangerous one, defendant can be held liable in nuisance for maintaining it, not in or upon the public highway, but so near to it that persons using the highway in ordinance course are likely to receive an injury therefrom. This point was determined adversely to defendant in McNulty v. Ludwig & Co., 153 App. Div. 206, particu-. larly at 209 and 210, 138 N. Y. Supp. 84.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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Bluebook (online)

149 N.Y.S. 855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemens-v-bretz-nyappterm-1914.

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