Donovan v. Gillies Coffee Co.

111 N.Y.S. 707

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.