#### Charles H. Smith, Resp’t, *v.*Joseph Ryan, Appl’t.

*(City Court of Brooklyn, General Term,*

*Filed February 24, 1890.)*

1. Negligence—Defects in sidewalk caused by owner of adjacent premises.

An owner of adjacent premises who interferes with a sidewalk for his. private purposes and fails to restore it to a safe condition is liable to any person sustaining injury thereby.

2. Same—Contributory negligence.

It is not negligence *per se*for a person, knowing the defective condition of a sidewalk, to pass over it; in doing so he is only required to exercise' the care and caution which a person of ordinary prudence would exercise' in like circumstances.

3. Same.

Plaintiff was injured by his foot being caught in a hole in the flagging-of a sidewalk in front of defendant’s house, and which sidewalk had been previously taken up by defendant to make sewer and water connections. *Seld,*that the questions whether its unsafe condition was owing to defendant’s failure to restore it to a safe condition and as to whether plaintiff used proper care and caution in passing over it were for the ju y to determine.

4. Same—Evidence.

In an action for such injuries evidence as to defendant’s act in removing the walk, and as to the manner in which it was relaid, is admissible.

Appeal from judgment in favor of plaintiff and from order-denying motion for a new trial on the minutes.

Action to recover for personal injuries sustained by plaintiff' while passing over the sidewalk in front of defendant’s house.

On the trial plaintiff was allowed, under objection, to give evidence as to the previous removal of the sidewalk, and that when, relaid the flags and dirt under them were loose, so that the flagstones would tip.

*Dailey &*Bell, for resp’t • *Horace*Graves, for app’lt.

Osborne, J.

Plaintiff brought this action to recover damages for injuries sustained by him in falling while passing over the sidewalk in front of the premises FTo. 1061 Broadway, in this city, owned by defendant, on the evening of January 18, 1889. Plaintiff claimed that his fall was occasioned by reason of the uneven and unsafe condition of the sidewalk, and that such condition was owing to the failure of defendant to properly relay the. *673sidewalk alter taking it up on different occasions to make sewer and water connections with his building. The defense Avas a general denial. It appeared upon the trial that defendant had, some time prior to the accident, caused excavations to be made in the sidewalk to make sewer and water connections with the premises which he owned, that the flagging on the sidewalk had been so relaid that it was very uneven, and that a piece or corner of one of the flags near the. center of the sidewalk was broken, leaving a hole about two or two and a half inches deep, the adjoining flag projecting above the broken flag a half to three-quarters-of an inch. It further appeared that defendant had on several occasions endeavored to remedy these defects by relaying some of the flags. Plaintiff, in passing over this sidewalk on previous occasions, had become aware of the existence of this hole and of the-uneven condition of the sidewalk. On the night in question his foot got caught in this hole, and he fell, breaking his arm in two places. Plaintiff obtained a verdict of §1,000, and from the judgment entered thereon and the order denying a motion for a new trial this appeal is taken.

That it was the original duty of the city to keep and maintain its sidewalks is too well settled to require the citation of authorities to support the proposition; but on the other hand, it is equally well settled that any person who interferes with the sidewalk for his own private purposes, and fails to restore it to a safe condition, is-guilty of a nuisance, and is liable to any person sustaining injury thereby. *Congreve*v. Smith, 18 N. Y., 79; *Johnson*v. Friel, 50 id., 679.

Nor was it negligence *per se*for plaintiff, knowing the condition. . of this sidewalk, to pass over it; in so doing he was only bound to exercise the care and caution which a person of ordinary prudence would exercise under the circumstances, and whether plaintiff exercised such care and prudence was a question under the 6ah.-dence for the juiy to determine. *Evans*v. *City of*Utica, 69 N. Y., 166; *Bullock*v. *The Mayor, etc., of New York,*99 id., 654.

The question as to whether the unsafe condition of the sidewalk was owing to defendants failure to restore it, after excavating it for his own purposes, and the further question as to whether plaintiff exercised proper care and caution in passing over this-sidewalk, with the knowledge that he had of its condition, were to be determined by the jury, and it was properly instructed on those points by the learned trial judge in his charge. Both of these propositions were decided adversely to the defendant, and a. careful examination of the evidence fully supports the finding of the jury.

The evidence offered at folio 59 as to the act of the defendant-in taking up the sidewalk was properly admitted, as going to show that its condition, at the time of the accident, was due to such interference with the sidewalk by defendant, and the faulty method employed by defendant in restoring the sidewalk as testified to, under defendant’s exception, at folio 79, was equally pertinent.

The twelfth and thirteenth requests to charge, of defendant’s *674counsel, were properly denied; they did not involve matters of law, but contained propositions of fact already in evidence, and adverted to by the learned trial judge in his charge to the jury.

For the reasons above stated, we are of the opinion that the judgment'and order denying motion for a new trial should be affirmed.

Judgment and order denying motion for a new trial affirmed, with costs.

Yaw Wyck, J., concurs.