Donovan v. Gillies Coffee Co.

Appellate Terms of the Supreme Court of New York

Donovan v. Gillies Coffee Co.

111 N.Y.S. 707

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 30, 1908

StatusPublished

This text of 111 N.Y.S. 707 (Donovan v. Gillies Coffee Co.) 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

Donovan v. Gillies Coffee Co., 111 N.Y.S. 707 (N.Y. Ct. App. 1908).

Pincite

Opinion

MacLEAN, J.

The plaintiff brought this action to recover for injuries received from falling into a cellarway in front of premises No. 90 Park Place, of which the defendant was not in occupation or possession, but which it had, and for seven or eight years last past leased to another. The evidence disclosed that the cellarway was in the sidewalk, was about four feet wide and five feet deep, and had no guard, railing, light, etc., for the protection of passers-by.

If the complaint be treated as one for negligence, the defendant is not liable, because it was neither in possession nor control of the premises. If it be treated as one for nuisance, evidence to establish the liability of the defendant as for a nuisance by its demise is insufficient, as the maintenance of such an opening was not shown to have been in violation of any law or ordinance.

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

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MacLEAN, J.

The plaintiff brought this action to recover for injuries received from falling into a cellarway in front of premises No. 90 Park Place, of which the defendant was not in occupation or possession, but which it had, and for seven or eight years last past leased to another. The evidence disclosed that the cellarway was in the sidewalk, was about four feet wide and five feet deep, and had no guard, railing, light, etc., for the protection of passers-by.

If the complaint be treated as one for negligence, the defendant is not liable, because it was neither in possession nor control of the premises. If it be treated as one for nuisance, evidence to establish the liability of the defendant as for a nuisance by its demise is insufficient, as the maintenance of such an opening was not shown to have been in violation of any law or ordinance.

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

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Bluebook (online)

111 N.Y.S. 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donovan-v-gillies-coffee-co-nyappterm-1908.