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1919.]

Opinion, per HOGAN, J.

[225 N. Y.]

non-observance of the ordinances relating to making, maintaining and repairing sidewalks and the removal of snow, ice and other obstructions from sidewalks, curbstones and gutters (L. 1879, ch. 53, sec. 113,

amd. L. 1897, ch. 172.)

Counsel for respondent in his brief asserts that the foregoing provision of the charter was first enacted by section 133, chapter 536, Laws of 1895, and as bearing upon the intention of the legislature in the enactment of the statute calls attention to the decision of this court in City of Rochester v. Campbell (123 N. Y. 405), which involved the liability of a property owner to the city of Rochester for a judgment recovered against that city by reason of an injury sustained by an individual due to the negligence of the abutting owner and argues that by reason of the decision in the Campbell case the city of Auburn procured the amendment of 1895 to the charter "making the abutting owner liable to it."

Evidently counsel for the respondent has been misinformed in reference to the legislative history of the quoted provision of the charter. The case of City of Rochester v. Campbell was decided by this court, December 2, 1890. The section quoted was originally section 113 of the charter (Laws of 1879, chap. 53) and was the subject of construction by the courts in Cashen v. City of Auburn decided in October, 1885. (Memorandum decision 22 Wkly. Dig. 387; appeal to this court dismissed, 109 N. Y. 658.)

In the Cashen case the action was brought against the city and lot owner to recover damages for a personal injury arising from snow and ice on a sidewalk. The plaintiff had a verdict at the Trial Term; exceptions were ordered heard in the first instance at the General Term; the city in that case contended that under section 113 of the charter, the present section 99, the duty of repairing sidewalks and keeping them clear of snow and ice was

[225 N. Y.]

Opinion, per HOGAN, J.

[Jan.,

upon the owner or occupant of abutting lands and not upon the defendant the city, and a right of action is given against such owner or occupant for injuries sustained consequent upon a breach of that duty and not against the defendant the city. Upon a review of the case at the General Term an opinion was written by then Justice HAIGHT, afterward a member of this court for many years. The opinion has never been reported, the memorandum of the case in the Weekly Digest being, as indicated, a mere memorandum. In the course of the opinion written by Justice HAIGHT, referring to section 113 and a contention of the city thereunder, the opinion stated: "Very true the party suffering an injury may doubless pursue either the city or the individual owning or occupying lands abutting upon the street. It is quite possible also that the individual owning or occupying the lands abutting upon the street may be liable to the city for any damage that it may be compelled to pay on account of defective sidewalks, but this does not relieve the city from liability in the first instance." The decision of the General Term was that a new trial was denied and judgment ordered for the plaintiff upon the verdict. It is apparent that the counsel for the city of Auburn in that case construed the charter provision as creating a liability on the part of the owner of the premises directly to the injured party in the first instance as claimed by appellant here, and in view of the stated facts any implied suggestion that the statute was amended in 1895 for the purpose of establishing a liability of a property owner over to the city due to the decision in the Campbell case fails.

That the legislature by the charter provision quoted intended to impose a statutory obligation upon the owner of property abutting a public street in the city of Auburn "to make, maintain and repair the sidewalk adjoining his lands" is apparent from the language of the

1919.]

Opinion, per HOGAN, J.

[225 N. Y.]

statute. The duty imposed, the statute proceeds to prescribe the liability of the owner for a failure to perform the legal obligation enjoined in the following words: "Such owner * * * shall be liable for any injury or damage, by reason of omission, failure or negligence to make, maintain or repair such sidewalk or for a violation or non-observance of the ordinances relating to making, maintaining and repairing sidewalks

The subject under consideration by the legislature in the enactment of the statute in question was the duty of the owner of property abutting the public street in the city of Auburn and the liability of such owner for a failure or omission to perform the duty, or negligence in a performance of the same. The statute is silent as to any duty or liability of the city thereunder. The liability imposed upon the owner was for any injury, that is for any violation of the rights of another resulting in loss or harm by the failure, omission or negligence of the owner to make, maintain or repair the sidewalk adjoining his property as required by the statute. In the case at bar by reason of the failure of the defendant to perform the statutory duty imposed upon him the rights of the plaintiff were violated and loss and harm inflicted upon her. She was the first person to suffer an injury. The fact that plaintiff sustained an injury did not necessarily result in an injury to the city. Had she commenced action against the city she might have been defeated by reason of failure to give to the city actual notice of the defect in the sidewalk forty-eight hours prior to the accident and the city thereby freed from liability. On the other hand had she succeeded in such action the city would immediately sustain not only an injury by reason of the action of the property owner but likewise damages which it in turn, the property owner having been vouched in the original action, could recover

[225 N. Y.]

Opinion, per HOGAN, J.

[Jan.,

under the statute against the property owner. Plaintiff was not required to first institute an action against the city. She was, if so advised, privileged to do so, or as she elected, to bring suit directly against the defendant

owner.

The conclusion we have reached in this case is not in conflict with the decision made in the Campbell case. The charter of the city of Rochester considered in the Campbell case imposed a duty upon the owner of a lot or piece of land in the city to keep the sidewalks in good repair and to remove and clear away snow and ice therefrom. While the duty was imposed as stated, the Rochester charter did not contain a provision like unto that contained in the charter of the city of Auburn, creating a liability upon the property owner for any injury or damage by reason of a failure to make such repairs and to maintain the sidewalk as therein provided.

The city of Auburn under its charter is exempt from liability for damages or injuries sustained by any person in consequence of any sidewalk being defective or out of repair, etc., unless actual notice of the defective condition of such sidewalk shall have been given to the commissioner of public works or a sidewalk inspector at least forty-eight hours previous to such damages or injury. The general purpose of such provision is to relieve the municipal corporation from liability by reason of constructive notice. The municipal corporation is of necessity entitled to reasonable protection but the citizen is likewise entitled to consideration. The plaintiff in this action had a right to assume that the street and sidewalk over which she was passing was in a safe condition for travel thereon. For the injury she sustained she is remediless under the decision below as against the defendant and by reason of lack of information sufficient to enable her to serve actual notice upon the city officers may be deprived of a remedy for the injury

1919.]

Statement of case.

[225 N. Y.]

she sustained. In view of the existing provisions of the charter we cannot ascribe such intention to the legislature.

The judgments below should be reversed and judgment ordered overruling defendant's demurrer, with costs in all courts to appellant, with leave to defendant upon payment of such costs within twenty days to answer. HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, MCLAUGHLIN and CRANE, JJ., concur.

Judgments reversed, etc.

DAVID LEVBERG, Respondent, v. HENRY D. SCHUMACHER,

Appellant.

Labor Law - provision that every vat and pan, the opening of which is below level of elbow of workman, shall be protected such provision not applicable to a shallow trough set in ground and used for cooling red hot tires in a wagonmaker's shop.

The Labor Law (Cons. Laws, ch. 31, § 81, subd. 1) provides that every vat and pan wherever set so that the opening or top thereof is at a lower level than the elbow of the operator or operators at work about the same shall be protected as therein set forth. The complaint alleges that plaintiff was in the employ of the defendant at the shop and place of business of the defendant and that he and another workman were engaged in cooling off in a trough or hole full of water a red hot tire which had just been placed on a wheel; that in the course of the work of cooling off the tire the water in the trough would absorb the heat from the tire and would then become warmer and warmer and would be changed at intervals during the course of the work by adding cold water which was obtained from a sink near the trough; that while so engaged in his work he slipped and his left foot and leg went into the trough while it contained boiling hot water and he sustained the injuries for which he seeks to recover in this action. It is also alleged in the bill of particulars that by reason of the pipes being frozen it was impossible to obtain cold water. The defendant is a wagonmaker and maintains a shop in which he performs his work and in which plaintiff was employed. The trough is a wooden box set in the ground so that the top of it is even with the surrounding flag or brick floor. It has been maintained in the

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