App. Div. 441] the sewer at this place was dangerous to the life of a large number of people. Fourth. As constructed it was reasonable to apprehend that a heavy rainfall or a clogging from other causes would subject the sewer to unusual pressure and cause it to break at this point. It was shown that in advance of the letting of the contract the plans were submitted to the chief engineer in charge of sewers of the city for his suggestions and approval; that in 1911 the successor of the first engineer called attention to the reduced capacity of the new sewer and suggested that it be made larger; and that the Public Service Commission suggested that he take the matter up with the contractor, which he signified his intention of doing. The city, through those having charge of its sewers, had knowledge of the defects in construction, and yet it accepted the sewer and maintained it in its dangerous condition. Hence the city was liable for resulting damage. (McCarthy v. City of Syracuse, 46 N. Y. 194; Hines v. City of Lockport, 50 id. 236; Nims v. Mayor, etc., of City of Troy, 59 id. 500; Vogel v. Mayor, etc., 92 id. 10; Schumacher v. City of New York, 166 id. 103; Rumetsch v. Wanamaker, New York, Inc., 216 id. 379.) On On the plaintiff's appeal the judgment is affirmed, with costs to the respondent Dock Contractor Company. the city's appeal, the judgment is affirmed, with costs to the plaintiff. DOWLING, SMITH and GREENBAUM, JJ., concur; CLARKE, P. J., dissents. On plaintiff's appeal judgment affirmed, with costs to respondent Dock Contractor Company. On appeal of defendant The City of New York, judgment affirmed, with costs to plaintiff. First Department, July, 1921. [Vol. 197 WILLIAM A. MCDONNELL, Respondent, v. BERENT C. GERKEN and Others, Copartners Doing Business under the Firm Name of ADLER & ECKSTEIN, Appellants. First Department, July 1, 1921. Nuisance action to recover for injuries suffered from faulty operation of freight elevator upon theory that it was of dangerous construction and unlawfully maintained defendant not liable where structure was lawfully constructed and not dangerous for purpose for which maintained negligence not shown. The complaint should have been dismissed in an action for personal injuries brought on the theory of nuisance, where it appeared that the plaintiff was injured while aboard an elevator constructed and maintained for use as a freight elevator and not for the transportation of persons and that the structure was wholly within the defendant's premises, lawfully constructed and not dangerous when used for the purpose for which it was constructed and maintained. The danger of injury to others in the use of a structure must be apparent and reasonably to be apprehended in order to constitute a nuisance. If injury occurred to plaintiff by reason of the careless operation of the elevator, his redress would be in an action for negligence and not nuisance. But the plaintiff failed to show negligence by any one for whose act any of the defendants would have been responsible. APPEAL by the defendants, Berent C. Gerken and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1920, on the verdict of a jury for $15,000, and also from an order entered in said clerk's office on the 30th day of January, 1920, denying defendants' motion for a new trial made upon the minutes. Waller G. Evans of counsel [G. Everett Hunt, attorney], for the appellant Gerken. James J. Mahoney, attorney for the appellants Adler & Eckstein. Vincent L. Leibell of counsel [Valentine Taylor with him on the brief; Phillips, Mahoney & Leibell, attorneys], for the respondent. App. Div. 446] First Department, July, 1921. PAGE, J.: The case was submitted to the jury on the theory that the freight elevator in the premises was of an obviously dangerous construction, wrongfully and unlawfully maintained. The plaintiff was employed by the subtenant of the two upper floors of a building owned and constructed by the defendant Gerken and leased to the defendants Adler and Eckstein who occupied the first and second floors. An elevator shaft of brick extended from the ground floor to the roof on the west side of the front of the building. On the opposite side was a stairway leading to all the floors of the building. In the wall of the street side of the shaft there was a window on each floor; the casement and sashes of these windows were set into the wall so that the window panes were about eight inches from the surface of the shaft wall. In this shaft was a freight elevator, the floor of which was seven feet, five inches by five feet, eight inches. The sides of the elevator were inclosed, but the front and rear were open, to allow entrance from the street and floors of the building. It was started and stopped by a cable on which was a safety clutch; when the clutch was closed it prevented the starting of the elevator. There was no one employed to operate the car. On the day in question the plaintiff brought furs that he had collected from the customers of his employer, and with the help of his assistant and his employer's shipping clerk loaded them on the elevator. The helper ran the elevator to the third floor, and the plaintiff rode up with the load. After his receipt book was signed, he returned to the elevator and stood looking out of the window in the elevator shaft while the furs were being transferred from the elevator. The elevator suddenly started up and the plaintiff was caught between the top of the window opening and the floor of the elevator and seriously injured. It is not disputed that the defendant Gerken employed a competent architect to make the plans and superintend the construction of the building, including the shaft; that those plans were approved by the building and fire departments of the city of New York; that after the shaft and elevator were constructed they were inspected and tested by inspectors of those departments and found to comply with the law and First Department, July 1921. [Vol. 197 the requirements of the building department; and that they were of a type in common use in the city of New York. The The shaft and elevator were constructed and maintained for use as a freight elevator and not for the transportation of persons; in fact, a notice was conspicuously posted in the elevator: "For freight only. Persons riding on this elevator do so at their own risk." In order to constitute it a nuisance the combination of the elevator and shaft must be inherently dangerous when used for the purpose for which it was constructed and maintained. The danger of injury to others in its use must be apparent and reasonably to be apprehended. There was no danger of injury to any person in the combination of the recess in the shaft and the elevator. cable to operate the elevator was on the side opposite the window. Therefore, no person who would have a right, or could reasonably be expected to ride on the elevator, would have occasion to be on the side toward the window. The structure was wholly within the defendants' premises, lawfully constructed and not dangerous when used for the purpose for which it was constructed and maintained. If injury occurred to the plaintiff by reason of the careless operation of the elevator, his redress would be in an action for negligence and not nuisance. (Glover v. Holbrook, Cabot & Rollins Corp., 189 App. Div. 328.) The plaintiff failed to show negligence of any person for whose act any of the defendants would have been liable. The complaint should have been dismissed. The judgment and order should be reversed, with costs, and complaint dismissed, with costs. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment and order reversed, with costs, and complaint dismissed, with costs. App. Div. 449] First Department, July, 1921. In the Matter of the Judicial Settlement of the Account of MARY ROWE, as Administratrix, etc., of WILLIAM ROWE, Deceased, by CONRAD HILBERT, as Administrator, etc., of MARY ROWE, Deceased. MARY L. LOTT and Others, Appellants; CONRAD HILBERT and Others, Respondents. First Department, July 1, 1921. Executors and administrators - decree of Surrogate's Court adjudging absentee died prior to issuance of letters not res judicata as to date of death and binding on surrogate of another county presumption of death person presumed dead seven years after being last heard from for purpose of establishing rights in estate evidence insufficiency of proof to raise presumption of death deposit of share of estate to credit of proceeding. A decree of a Surrogate's Court in proceedings to have an administrator of the estate of an absentee appointed, is in no event an adjudication with respect to the time of the death of the absentee and binding on the surrogate of another county, in a proceeding in which the exact date is material, since the date was not necessary to be established with exactness and all the surrogate had to determine was that the absentee was presumed to be dead prior to the issuance of letters and accordingly fixed the date as the date of the decree authorizing letters to issue. It was incumbent on the administrator of the absentee, in order to substantiate his claim to a part of the brother's estate, to prove as a fact that the absentee survived his brother. The surrogate was well within the rules of presumption of death when he applied the period of seven years to extend from certain dates which the evidence showed were the last time any mention was made of any of the absentee's relatives having heard from him and where the letters undoubtedly referred to information received some years before their dates. The evidence did not show a diligent and systematic search to ascertain whether a nephew of the deceased, who left his home many years before, was alive, and it was correctly held that enough evidence was not introduced to raise a presumption of his death, and it was proper to direct that his share in his uncle's estate be paid to the chamberlain of the city of New York to the credit of the proceeding. APPEAL by Mary L. Lott and others from a decree of the Surrogate's Court of the county of Bronx dated the 10th day APP. DIV.- VOL. CXCVII. 29 |