#### Ann McParthand, Pl’ff and Resp’t, *v.*Henry Thoms, Def’t and App’lt.

*(City Court of Brooklyn,*

*General Term,*

*Filed April 20, 1889.)*

1. Negligence—Nuisance—Liability of lessee.

A person who occupies the first floor "of a Milding, over thelsidewalk of which there had been erected a wooden .awning, without any license “from the city authorities, but such occupant received the benefits of such awning as a "part of the demised, premises: *'Held,*that "such tenant of the premises is guilty of maintaining a nuisance, and is liable to any one injured thereby; and it makes ño difference whether he was tenant by the month • . or by the year, for he is held liable, for the reason that he maintained a nuisance, apd not because he failed to make repairs, -

.2. Same—When a defense must be pleaded in answer.

It seems that, even if such license had been granted,"before the defendant can avail himself of such a defense, he must plead it in his answer.

3. Same — When refusal of court to charge as requested, not ERROR.

Refusal of the court to charge on requests of defendant, which had no application to‘the questions on trial: *Held,*not error.

Appeal from judgment for plaintiff.

*Robert Johnstone,*for def’t app’lt; *Charles J. Patterson,*for pl’ff resp’t.

Clement, Ch. J.

The plaintiff, a child of the age of seven years, was playing on the sidewalk, in the evening of December 2G, 1883, in front of the premises occupied by the defendant, on Degraw street, in this city, when the wooden awning over such sidewalk fell by the weight of the snow, and she thereby sustained injuries, and to recover compensation therefor, this action was brought. The jury found a verdict for the plaintiff, and from the judgment entered thereon, and the order denying a new trial, this appeal is taken. This action was tried prior to .the decision in the case of *Jennings*v. *Van Schaick*(108 N. Y., 531), and a reversal is now asked on that authority. The difficulty in such contention by the counsel for the appellant is that there was no exception, taken which brings up the point decided in that case; but, even if the question was before us, we do not think that the authority would help the counsel, for the reason that a license on the part of the city authorities was not pleaded in the answer. *Clifford*v. *Dam*(81 N. Y., 52). The defendant had occupied the first floor of the building as a grocery store for over two years prior to the time when plaintiff was injured, and received the benefits of the awning as a part of the demised premises, and, if such awning was there without a license from the *111city authorities, it was a nuisance, because an encroachment on the highway, and we do not see that it makes any difference in the law whether the defendant was a tenant by the month or by the year, for he is held liable, for the reason that he maintained a nuisance, and not because he failed to make repairs. The exceptions at pages *21*and *22*of the case were not well taken, because the requests had no application, in view of the fact that the action was not brought for the negligence of the defendant. The question of contributory negligence was properly submitted to the jury.

tile judgment and order denying new trial must be affirmed, with costs. •

All concur.