#### Maria Anderson, plaintiff and respondent, *vs.*Patrick Dickie, defendant and appellant.

1. The owner of premises having an area or vault under the highway in front thereof, and communicating therewith by an underground passage, is bound, at his peril, to provide such a covering for an opening into such vault from the highway, that the latter will he as safe to pass over as-it would have been if no such area or vault and opening had existed. .

2. If he leases the premises to which such vault is an appurtenance, without-providing a covering with secure fastenings for such opening therein, he is liable for injuries sustained by a passer by, who falls into such opening, although such covering may have been removed or deranged by the tenant, or a third person.

(Before Moncrief, Robertson and Monell, JJ.)

Heard October 7,1863;

decided November 14, 1863.

This was an appeal by the defendant, from a judgment entered upon a verdict in favor of the plaintiff.

The action was to recover-damages for personal injuries sustained by the plaintiff in falling into the opening in the street of a coal vault which the defendant had constructed under the sidewalk in front of his premises, in the city of New York. This opening he had provided with a grating, which was without fastenings. In this condition he had demised the premises, or the part including the vault, with the appurtenances, to one James Walnut, in whose occupation the same were at the time of the accident. The defendant relied on evidence going to *239show that the tenant used, the vault hole in taking coal in. .That he uncovered the hole about once, twice, or three times a week to take in coal. That there was no difficulty about the vault or grating up to the occurrence of this accident. That when the grating was in its bed it could be walked over or pressed upon in any way from the outside without disturbing it, and that it could not be moved by stepping, on it. That on the day the accident occurred the grating had been removed, coal put through the hole into the vault, and the coal cartman did not put back the grating. There was no evidence that the tenant had replaced the grating after having lifted it in order to put in coal, but evidence to the contrary, and also that at the time of the accident the grating was not in its bed, and the tenant was in the habit of leaving the grating off, after-putting in coal.

The cause was tried on the 24th and 25th of February, 1863, before Mr. Justice Monell, and a jury. Under the charge of the court, which is sufficiently stated in the opinion, the jury rendered a verdict for the plaintiff, for $750. Judgment having been entered thereon,.the defendant appealed.

*A. Boardman,*for the defendant, appellant.

I. The motion to dismiss the complaint should, have been granted.

1. The premises were, at the time of the accident, in the possession of the tenant, and he was *prima facie*liable. *(Eakin*v. *Brown,*1 *E. D. Smith,*36. *Mayor*v. *Corlies,*2 *Sandf.*301.)

2. The evidence showed that the tenant had used the opening for the purpose of putting in coal,- and there is no evidence to show that he had replaced the grating in its bed.

3. The burthen of proof was on the plaintiff, and she was bound to give some evidence that the accident *was,*not merely that it *might have been,*occasioned by defects of structure. *(Butler*v. *Kent,*19 *John.*223.)

4. No defect or perfectness of structure could have had any effect in producing or preventing an accident if the grating was not properly restored to its bed after being taken off.

*2405. There was no proof of any relation between the defects of structure and the accident, and consequently nothing to go. to the jury. Any verdict rendered on the plaintiff’s testimony alone, would be set aside as against the weight of evidence, and it is the judge’s duty to nonsuit where a verdict for the plaintiff would be against the weight of evidence. *(Wilds*v. *Hudson River R. R.*24 *N. Y. Rep.*430.) The judge is not justified in leaving the case to the jury where the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence in the defendant. *(Colton*v. *Wood,*98 *Eng. Com. Law, 566 ; cited with approbation in the above cases.)*

II. The carelessness of the plaintiff contributed to the injury, and' therefore the defendant is not liable. (*Wilds*v. *Hudson River R. R., 24 N. Y. Rep. 430.)*,

III. The judge erred in refusing to charge as requested, “that a landlord, during the tenancy, gives up entirely to the tenant the premises demised, and has no right to enter them .for any purpose. His entering is permissive only, like that of any other person; If he enters without leave, he is a trespasser. That the defendant can not be held liable except for negligence of his own. He is not in any respect responsible for the negligence of his tenants.. That if the accident could not have happened, provided the grating had been properly placed in its bed, the landlord is not liable, in the absence of proof, that he had any thing to do with its displacement.”

IV. The judge also erred in refusing to charge as requested. “ That it is the business of the tenant, and not of the land-land, to fix the grating into its bed after using italso, “ That if the accident happened by reason of the tenant not replacing the grating in its bed after taking the same away, the landlord is not liable for the injury.”

I. *D. Warren,*for the plaintiff, respondent.

I. The court properly denied the motion to dismiss the complaint.

*2411. The defendant, for his own benefit, had constructed and continued vaults under the public street without any special authority, and had continued the same for thirty-nine years ; and the injury occurred by reason of the imperfect, manner in which such vault was covered and protected. The fact that it was rendered unsafe by the act of a stranger will not relieve him from liability where the party injured was free from negligence. *(Congreve*v. *Smith,*18 *N. Y. Rep.*79. *Congreve*v. *Morgan, Id.*84. *Dygert*v. *Schenck,*23 *Wend.*446. *Harlow*v. *Humiston,*6 *Cowen,*191. *Angell on Highways,*§ 223. *Bac. Abr. Highways, D.)*

2. The evidence shows that the defendant was guilty of negligence in not having this defective grate properly secured. *(Curtis*v. *Roch. and S. R. R. Co.,*18 *N. Y. Rep.*534.)

3. There was an entire absence of any evidence of negligence on the part of the plaintiff, and the judge would not have been warranted in taking the case from the jury. *(Johnson*v. *Hudson R. R. Co.,*5 *Duer,*21. *Oldfield*v. *N. Y. and Harlem R. R. Co.,*14 *N. Y. Rep.*314. *Williams*v. *O’Keefe,*24 *How. Pr.*19.) She was walking in the highway of the city, upon the belief and assurance that it was in a safe and proper condition to be traversed, and as a matter of law, was justified in relying upon that belief. *(Dargie*v. *Magistrates, &c.*27 *Scottish Jurist,*311. *Hay on Liability,*208, 215. *Davenport*v. *Ruckman,*10 *Bosw.*20. *Ang. on Highways,*§ 226.) The court will not presume negligence,fin the absence of evidence. *(Johnson*v. *Hudson River R. R. Co.,*5 *Duer,*25. *Button*v. *The Same,*18 *N. Y. Rep.*252. *Johnson*v. *Hudson River R. R. Co., 20 id.*65. *First Bap. Church*v. *U. and S. R. R. Co.,*6 *Barb.*318. 24 *How. opinion of*Monell J. *Burrill’s Law Dict. vol. 2,p.*586. *Broom’s Legal Maxims,*122. 3 *Bl. Com.*215. 4 *id.*27.)

4. The defendant let the premises to Walnut, with this grate in a defective and dangerous condition, and on that ground alone is liable for any injury resulting to third persons by reason thereof. *(Taylor’s Landlord and Tenant, p.*109, *242§ 175. *Brown*v. *C. and S. R. R. Co.,*2 *Kern.*487. *Corporation Revised Ordinance, 1857, p.*259, § 16.)

II. The first proposition or request to charge was properly-refused, except as the judge had already charged. *(Taylor’s Landlord and Tenant,*§ 174, *p.*108.)

The judge could not charge in the terms of the request without qualification, and his refusal to charge as requested was no error. *(Bagley*v. *Smith,*6 *Seld.*489, 499. *Carpenter*v. *Stilwell, 1 Kern.*61. *Kiernan*v. *Rocheleau,*6 *Bosw.*148. *Magee*v. *Badger,*30 *Barb.*246. *Gardner*v. *Clark,*17 *id.*538.)

“It was the defendant’s duty to know that the side-walk over his vault was safe,” The plaintiff had a right to presume it was. *(Cases under Point I. Ryan*v. *Fowler,*24 *N. Y. Rep.*414.)

III. The second request to charge was properly refused, except as it was charged ; as there is no evidence to support it. There was no lease in evidence, por any agreement proved containing any such provisions, and such a charge would haA-e been improper. *(Mayor of N. Y.*v. *Price, 5 Sandf.*542. *Kiernan*v. *Rocheleau,*6 *Bosw.*148. *Rushmore*v. *Hall,*12 *Abb.*420. *Eakim*v. *Brown,*1 *E. D. Smith,*36.)

IV. The sixth,.seventh and eighth requests were charged in stronger terms than the defendant’s request,

V. Ho exception was taken to the charge, and every request to charge, in any way warranted by the evidence, or correct as a proposition of Iuav, was fully and distinctly charged.

VI. Most of the evidence as to the improper construction of the grate is against the defendant.

By the Court, Robertson, J.

The plaintiff was injured by falling through a circular aperture in the .pavement of the street in front of Hos. 68 and 70 Lispenard street, in the city of Hew York, from which a passage descended into a vault adjoining such premises and used therewith. This opening, passage and vault were there when the premises. Avere let by the defendant to a tenant. Such aperture Avas covered, usually, *243by a loose, moveable, circular grating, sunk into a circular flange or socket cut into the flagging of the side-walk, on which it rested. It appeared in evidence, that a chain fastened to such grating and to a bar on the inside of the vault, would have greatly increased the probability that such grating would not be moved. It also appeared that a grating with prongs and two chains, with one of them fastened to each side of the* opening, and a flange projecting beyond the edge of the opening and resting on the pavement, would have been the most secure. The evidence as to the existence of any fastenings to such grating when the premises were let by the defendant, the possibility of tilting up the grating, if it was in its socket, and the condition of the fastening and grating at the time of the accident, was somewhat conflicting. There was also some evidence to show that the gracing had been displaced and left unreplaced by the tenant. ^

On the trial the defendant requested the court to charge the jury, among other things : (1.) That a landlord had no right to enter premises let by him, without the consent of the tenant. (2.) That he is not bound to make repairs when he lets such premises by a lease binding the tenant to leave the premises in as good condition as when he entered.. (3.) That he is only liable for his own negligence, and not for that of his tenants. (4.) That he is not liable unless he be proved to have had something to do with the displacement of the grating, if the accident could not have happened, if it had been properly placed in its bed. (5.) That he is not liable if the accident happened by reason of the tenant’s not replacing the grating in its bed, after displacing it. (6.) That it is the business of the'tenant, and not of the landlord, to replace this grating after using the opening.

The learned justice who presided at the trial charged the jury, (1.) That the law imposed upon the owner of property in a city, who used any part of the street for his private purpose, the duty of employing all -necéssary and proper means for the prevention of damages and injury that might arise from the use of such public street by him, and he. is responsi*244ble for all injury resulting from the street being made thereby less safe for its proper uses when there is no negligence on the part of the party injured. (2.) If the grating was insecure at the time of the happening of the accident in question, and that was occasioned by the negligence of the defendant, he is liable in this action ; for, being owner of the property, he was bound to see that the grating was kept securely. (3.) If the jury were satisfied that without'the chain and bar the grating was entirely secure and free from liability to cause accidents to persons passing over it, the defendant was not guilty of negligence. (4.) If the defendant did not resort to all necessary and proper means to render the grating secure, and its insecurity had existed and continued for a considerable time previous to this action, he is liable. (5.) The law is answered by' a landlord’s using reasonable diligence at the time of letting the property to see that it is in good condition. (6.) The defendant would not be liable if the grating had been secured by him previously and the security had been removed by the tennant or any one else. The court refused to instruct the jury upon the points requested otherwise than it did in such charge, and the defendant’s counsel excepted to such refusal.

It was not probably intended to be maintained on behalf of-the defendant, that the mere liability of the tenant would of itself absolve him from all ’responsibility for the injury to the plaintiff; the creator of a nuisance, or one who more remotely either by negligence or design furnishes the means and facility for the commission of any injury to another, which could not have been done without them, is equally responsible with the immediate wrongdoer. (*Vandenburgh*v. *Truax,*4 *Denio,*464. *Thomas*v. *Winchester, 6 N. Y. Rep.*397. *McCahill*v. *Kipp,*2 *E. D. Smith,*413.) So, too, if the defendant had never let the premises adjoining the vault, and the grating had been left in a condition to be easily moved by a stranger; and it had been so moved as to cause the injury in question, it would hardly be contended that the defendant was not liable for the injury to which he had contributed. The only question that remains, therefore, is whether the defendant relieved himself *245from responsibility in such case by demising the vault and its appurtenances, with the insecure grating, to a third person.

It was held in the cases of *Congreve*v. *Smith,*(18 *N. Y. Rep.*79,) and *The Same*v. *Morgan, (Id.*84,) that persons constructing an area in the highway are bound, at their peril, to keep it so covered that the way would be as safe as before the area was built, wholly irrespective of the covering being rendered unsafe by the wrongful act' of a third party. These decisions were followed by this court in the case of *Davenport*v. *Ruckman,*(10 *Bosw.*20.) It may well be doubted whether, even if the defendant in this case had let the premises with the grating over the vault hole secured only by fastenings which were moveable, he would not be responsible for injury caused by those fastenings being removed after he parted with their possession and use for a consideration. He could hardly be held to have discharged his duty to the public by leaving such traps as vault holes guarded against doing injury only by fastenings easily undone and intended to be undone constantly by the tenant, for which facility he may be supposed to have been receiving part of his rent. But if there were in fact no fastenings, but merely a loose cover to the opening, he would be still more obnoxious to responsibility for its removal. The charge was more favorable to the defendant than he could ask, since it exempted him from liability if he used reasonable diligence to see that the premises were in good condition when he let them, and if the grating had then been secure, although the security had been removed by another. It only made him liable, in case the grating was insecure at the time of the accident by reason of the previous negligence of the defendant, and his failure to resort to all proper and necessary means to make it secure, and such insecurity had existed for a considerable time.

The request to charge as to the absence of any right of a landlord to enter premises let by him, if relevant, was too broad; he can do so undoubtedly to prevent waste, and certainly to save himself from liability for leaving an exposed opening in the highway. It was, besides, not absolutely neces*246sary that *he*should *go*on the main premises at all, to a'dd a chain and fastening to the grating. There was no evidence of such a case as was supposed in the second, request; if there had been, the addition of a chain and fastening never before there, in order to prevent accidents, could hardly be called *repairs.*He was made liable only for his own negligence. The previous remarks dispose of the question of liability for the displacement of the grating by the tenant or a stranger, when facilitated by the negligence of the defendant; which is embraced in the remaining three requests to charge, before specified.

There being, therefore, no error in the refusal to charge, the judgment should be affirmed, with costs.