By the Court. Woodruff, J.
The facts in this case, upon which the disposition of the appeal herein seems to depend, may be stated thus:
One McCoy was the owner of certain two lots of ground on the northerly side of twenty-ninth street, Nos. 127 and 129, respectively, upon the rears of which were tenements, occupied as dwellings by his tenants, among whom were two of the plaintiff’s daughters, who occupied the rear of No. 127. Being about to erect two 'houses on the fronts of the two lots, which would temporarily render the rear buildings inaccessible from the street, the owner and landlord obtained permission to open a door through the fence into the lot next westwardly adjoining, and the privilege of allowing the occupants of his rear buildings to pass out and in, to and from the street through such door and through a passage way under the front building thereon. And he thereupon notified the tenants of their privilege to use such mode of access and egress, and they thereafter used it.
The cellars for the front buildings were thereupon dug, and the buildings commenced by the defendants, the one being a carpenter, viz. Mr. Beaver, and the other, Mr. Clark, being the mason, under contracts with the owner' for that purpose. The form or substance of these contracts we are unable to consider, since, although referred to in the return, they are not laid before us, and therefore, whether there is anything in them [371]*371which affects the questions raised on the appeal we are, of course, ignorant.
In the progress of the work, the cellars were dug, the walls erected, and the buildings made to cover the entire front of the lots; but, along the westerly side of the easterly wall of Ro. 127, there was left an alley three feet wide, running through and opening into the yard in the rear, intended for the ingress and egress of the occupants of the building in the rear; and, adjoining the same, towards the west, and separated from this alley by a wall, was the basement entrance to the front house (Ro. 127), and the usual basement hall running through the building. In that were intended to be placed the cellar stairs, and the usual opening for a staircase was left in the arrangement of the floor beams and on laying the floor. The same arrangement was made in the basement of Ro. 129, on the westerly side of the easterly wall thereof. The upper stories of both buildings, of course, extended over these alley ways.
After the basement floors were laid, but while the buildings were in progress, and while these contemplated alley ways were to a greater or less extent obstructed by building materials, or tools, or scaffolding, used by the workmen, the tenants in the rear began to use these alley ways for ingress and egress, and the plaintiff who was, it would seem, in the frequent habit of visiting his daughters, and who, as testified, was aware of and had used the passage way through the adjoining lot, and who had also, after the floors were laid, frequently passed through the alley ways designed for the use of the tenants, came to the premises in the night time, and attempted to pass to the rear through the basement door and hall of the house Ro. 129; and, in doing so, he fell through the opening left for the cellar stairs, and received the injury complained of in this action.
The evidence showed, no doubt to the satisfaction of the court below, that on this night the alley ways in the two houses were obstructed so as to render a passage through them in the dark difficult and perhaps dangerous; while, on the other hand, it was not claimed that the passage way through [372]*372the adjoining lot was not open to the use of all who had occasion to visit the rear buildings; on the contrary, that passage was shown to have been open until shortly before the trial of the cause.
To recover damages for the injury thus sustained, the plaintiff has brought his action against both the carpenter and the mason employed in the erection of these buildings, alleging as the ground of claim their negligence in leaving the place for the stairway to the cellar in the basement open.
The court below have acquitted the carpenter and found the mason guilty, and from the judgment against the latter for the damages assessed he appeals.
So far as I can discover from the return, the reason for the discrimination would seem to be that it appeared that the carpenter’s men did very often cover this opening, and the mason’s workmen, finding it indispensable to the performance of their work in the cellar to admit light, would remove the covering.
Various other facts appeared on the trial bearing on the question of the extent of obstruction in the alley ways, and the negligence of the plaintiff himself, and the nature and consequences of the injury, and the proper amount of damages; but I do not think it necessary to enter into these particulars, or the objections to the evidence, or the exceptions of the defendants to the rulings relating to those points.
Upon the whole case, it appears to me that the mason is not liable to this plaintiff upon any ground of negligence whatever.
It is not claimed by the plaintiff’s counsel that either an owner or his contractor or workmen engaged in erecting a house upon his own land, is hable for the injuries which persons may sustain who visit the building in its unfinished state, and either for their own pleasure or convenience choose to walk over the beams or around the openings for stairs. If persons voluntarily choose to enter, or to attempt to pass through, they do so at their own peril, and neither owner nor workmen are bound to put up protection walls, or lay temporary floors to secure the safety of mere intruders. The principle of the cases of Talmedge v. The Rennsalaer and Saratoga Railroad [373]*373Company, 13 Barb. 493; and Brooks v. New York and Erie Railroad Company, ib. 594, and the cases cited therein, as well as Munger v. The Tonawanda Railroad Company, 4 Com. 349 (in Supreme Court, 5 Den. 255), apply to such a case, whether the injured party be a trespasser or merely guilty of negligence, or suffering the consequences of Ms own folly in exposing himself to danger.
But this case is supposed to be taken out of the principle of these cases, by the fact that the owner’s tenants had a right of way from the street to their place of residence; and, therefore, their visitors had the same right, and having such right, they and their visitors, when they found the alley ways obstructed, had also the right to pass through the. basement hall, and so were not either trespassers, nor negligent, nor intruders.
It is not necessary to discuss the rights of these tenants as against the owner in detail. If their agreement with him for the occupation of Ms tenements secured them rights which have been violated by the obstruction of their access to their dwellings, doubtless they have their recourse to the owner; and I incline to the opinion that, if the right of the plaintiff to recover in this action depends upon the question whether those tenants or their visitors had a right of way through the alleys referred to, or a right of way by necessity or otherwise through the basement hall, in which the accident happened, and this appeared as I think it must on the plaintiff’s own showing, the jurisdiction of the court below ceased, and he should have dismissed the cause.
That results from this view of the subject, viz. prima fade
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By the Court. Woodruff, J.
The facts in this case, upon which the disposition of the appeal herein seems to depend, may be stated thus:
One McCoy was the owner of certain two lots of ground on the northerly side of twenty-ninth street, Nos. 127 and 129, respectively, upon the rears of which were tenements, occupied as dwellings by his tenants, among whom were two of the plaintiff’s daughters, who occupied the rear of No. 127. Being about to erect two 'houses on the fronts of the two lots, which would temporarily render the rear buildings inaccessible from the street, the owner and landlord obtained permission to open a door through the fence into the lot next westwardly adjoining, and the privilege of allowing the occupants of his rear buildings to pass out and in, to and from the street through such door and through a passage way under the front building thereon. And he thereupon notified the tenants of their privilege to use such mode of access and egress, and they thereafter used it.
The cellars for the front buildings were thereupon dug, and the buildings commenced by the defendants, the one being a carpenter, viz. Mr. Beaver, and the other, Mr. Clark, being the mason, under contracts with the owner' for that purpose. The form or substance of these contracts we are unable to consider, since, although referred to in the return, they are not laid before us, and therefore, whether there is anything in them [371]*371which affects the questions raised on the appeal we are, of course, ignorant.
In the progress of the work, the cellars were dug, the walls erected, and the buildings made to cover the entire front of the lots; but, along the westerly side of the easterly wall of Ro. 127, there was left an alley three feet wide, running through and opening into the yard in the rear, intended for the ingress and egress of the occupants of the building in the rear; and, adjoining the same, towards the west, and separated from this alley by a wall, was the basement entrance to the front house (Ro. 127), and the usual basement hall running through the building. In that were intended to be placed the cellar stairs, and the usual opening for a staircase was left in the arrangement of the floor beams and on laying the floor. The same arrangement was made in the basement of Ro. 129, on the westerly side of the easterly wall thereof. The upper stories of both buildings, of course, extended over these alley ways.
After the basement floors were laid, but while the buildings were in progress, and while these contemplated alley ways were to a greater or less extent obstructed by building materials, or tools, or scaffolding, used by the workmen, the tenants in the rear began to use these alley ways for ingress and egress, and the plaintiff who was, it would seem, in the frequent habit of visiting his daughters, and who, as testified, was aware of and had used the passage way through the adjoining lot, and who had also, after the floors were laid, frequently passed through the alley ways designed for the use of the tenants, came to the premises in the night time, and attempted to pass to the rear through the basement door and hall of the house Ro. 129; and, in doing so, he fell through the opening left for the cellar stairs, and received the injury complained of in this action.
The evidence showed, no doubt to the satisfaction of the court below, that on this night the alley ways in the two houses were obstructed so as to render a passage through them in the dark difficult and perhaps dangerous; while, on the other hand, it was not claimed that the passage way through [372]*372the adjoining lot was not open to the use of all who had occasion to visit the rear buildings; on the contrary, that passage was shown to have been open until shortly before the trial of the cause.
To recover damages for the injury thus sustained, the plaintiff has brought his action against both the carpenter and the mason employed in the erection of these buildings, alleging as the ground of claim their negligence in leaving the place for the stairway to the cellar in the basement open.
The court below have acquitted the carpenter and found the mason guilty, and from the judgment against the latter for the damages assessed he appeals.
So far as I can discover from the return, the reason for the discrimination would seem to be that it appeared that the carpenter’s men did very often cover this opening, and the mason’s workmen, finding it indispensable to the performance of their work in the cellar to admit light, would remove the covering.
Various other facts appeared on the trial bearing on the question of the extent of obstruction in the alley ways, and the negligence of the plaintiff himself, and the nature and consequences of the injury, and the proper amount of damages; but I do not think it necessary to enter into these particulars, or the objections to the evidence, or the exceptions of the defendants to the rulings relating to those points.
Upon the whole case, it appears to me that the mason is not liable to this plaintiff upon any ground of negligence whatever.
It is not claimed by the plaintiff’s counsel that either an owner or his contractor or workmen engaged in erecting a house upon his own land, is hable for the injuries which persons may sustain who visit the building in its unfinished state, and either for their own pleasure or convenience choose to walk over the beams or around the openings for stairs. If persons voluntarily choose to enter, or to attempt to pass through, they do so at their own peril, and neither owner nor workmen are bound to put up protection walls, or lay temporary floors to secure the safety of mere intruders. The principle of the cases of Talmedge v. The Rennsalaer and Saratoga Railroad [373]*373Company, 13 Barb. 493; and Brooks v. New York and Erie Railroad Company, ib. 594, and the cases cited therein, as well as Munger v. The Tonawanda Railroad Company, 4 Com. 349 (in Supreme Court, 5 Den. 255), apply to such a case, whether the injured party be a trespasser or merely guilty of negligence, or suffering the consequences of Ms own folly in exposing himself to danger.
But this case is supposed to be taken out of the principle of these cases, by the fact that the owner’s tenants had a right of way from the street to their place of residence; and, therefore, their visitors had the same right, and having such right, they and their visitors, when they found the alley ways obstructed, had also the right to pass through the. basement hall, and so were not either trespassers, nor negligent, nor intruders.
It is not necessary to discuss the rights of these tenants as against the owner in detail. If their agreement with him for the occupation of Ms tenements secured them rights which have been violated by the obstruction of their access to their dwellings, doubtless they have their recourse to the owner; and I incline to the opinion that, if the right of the plaintiff to recover in this action depends upon the question whether those tenants or their visitors had a right of way through the alleys referred to, or a right of way by necessity or otherwise through the basement hall, in which the accident happened, and this appeared as I think it must on the plaintiff’s own showing, the jurisdiction of the court below ceased, and he should have dismissed the cause.
That results from this view of the subject, viz. prima fade the plaintiff was a trespasser, groping in the dark along the unfinished hall of another man’s building; and, upon the principles above referred to, acting in his own wrong or in pursuance of his own folly and, therefore, at Ms own peril. To relieve him from this position, the plaintiff essays to prove that he was there of right, and in virtue of a title in his daughters, to a way across the premises, under which he had presumptive license as their visitor. Why is not this of necessity raising a question of title, and a title wMch the plaintiff must prove [374]*374before he can be entitled to recover ? This is even now the ground upon which his counsel seeks to maintain the judgment. And, be it observed that the case in no wise proceeds upon the ground that the basement was carelessly left open so as to deceive those who desired to enter the alley way, and lure them in the darkness to a pitfall. On that ground there is nothing to fix liability on the mason; but it proceeds solely on the idea that the plaintiff knew where he was, and that he entered the house voluntarily and of right, because the alley way was obstructed.
Without deciding the case, however, upon the ground of failure of jurisdiction, I may assume it, as conceded on the trial, that the tenants in the rear had a right of ingress and egress to and from the street, and that the plaintiff as their visitor had presumptive license to go and come also. How, then, does the plaintiff’s case stand affected by that presumption ?
It is said that the alley way being obstructed, there was, by the law of necessity, another way opened to them. No authority is furnished for such a conclusion, nor do I perceive how any such consequence results. If the right of way of the tenants was obstructed, they had their redress against whomsoever created the obstruction; but, because the workmen stopped the alley way wrongfully, it did not convert the owner’s house adjoining into a path for their use. They might remove the obstructions as a nuisance and recover damages, but that is all.
But this alleged right of passage through the basement by necessity, fails for another reason. They had another way which had been opened for their use, and the plaintiff knew it, and had used it, and it was still open. There was, therefore, in no sense, a right of way by necessity anywhere, nor to any of the parties.
Again, what ground is there for saying that the stoppage or obstruction of the alley way converted the basement hall into a way for their use ? Why not the hall, of the first floor as well? and why not any part of the premises which the plaintiff chose to enter ? If it be said that he might select the most [375]*375convenient way, the first answer would he, let him take the way through the - lot adjoining, which had been provided in view of the interruption occasioned by the erection. At all events, let him not take a way full of peril, and then ask compensation for the injury sustained there.
Suppose the basement door, also, had been closed; or, still better, suppose that he, fearful of the fall into the cellar (the danger of which in the dark seems by no means less than the obstructions in the alley), had chosen to climb in at a window, it could not for a moment be claimed that he should be protected against a broken neck, or a bruised head, or soiled garments, if he encountered the usual appliances or materials employed in the progress of a building.
Without pursuing the subject further, or inquiring how far a mere visitor is entitled to set up any such claim of right as is insisted upon in support of this action, or inquiring whether upon any facts appearing by this return, the mason employed in one department of the building could be subjected to liability upon such a claim, it must suffice to say that I cannot regard the plaintiff otherwise than as acting at his own peril in entering the basement of this house; and the mason was under no duty to him upon which the charge of negligence can rest.
In my opinion, therefore, the judgment should be reversed and judgment ordered for the defendant with costs.
Judgment reversed with costs.