Euphmia H. Coon, Respondent, v. Frank L. Froment and Lydia B. Froment, Appellants

Euphmia H. Coon, Respondent, v. Frank L. Froment and Lydia B. Froment, Appellants. A complaint cha/rging that an owner of a city lot and her agent “ caused or permitted ” an obstruction to remain on the sidewalk —• liability of the agent of the owner. A complaint in an action brought to recover damages resulting from personal injuries which the plaintiff sustained by falling over a bundle of wire upon the sidewalk in front of premises of one of the defendants for whom the other defendant acted as agent, alleged that the defendants had for a long time wrongfully, negligently and carelessly “ caused or permitted” the wire to remain on the sidewalk. Upon the hearing of a demurrer interposed to the complaint, it was Held, that the word “permitted ” was used in the complaint not in the sense of “to suffer,” hut in the sense of “to give leave,” and that in this view it charged the defendants, not merely with suffering an obstruction placed on the sidewalk by some one else to remain there, but with the creation or the giving permission to the continuance of such obstruction. In an actiqn based upon the creation or maintenance of a nuisance, not only the principal, whose agent did the act complained of, but also the agent, is liable for the wrongful act. Appeal by the defendants, Frank L. Froment and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the .clerk of the county of Few York on the 12th day of October, 1897, upon the decision of the court, rendered after a trial at the Few York Special Term, overruling the defendants’ demurrers to the amended complaint, and also from an order entered in said clerk’s office on the 12th day of October, 1897, directing the entry of such judgment. The demurrers were'interposed on the ground that the amended complaint does not state facts sufficient to constitute a cause of action. The complaint was one for damages for personal injuries sustained by plaintiff from falling over a bundle of wire on the street sidewalk in front of the defendants’ premises. The material allegation is that “ said defendant Frank L. Froment, as the agent, manager or employee of said defendant Lydia B. Froment, did, on the 1'lth day of May, 1897, and for a long time prior thereto had, wrongfully, negligently and carelessly caused or permitted the sidewalk on and in front of said premises on Bank street to become obstructed and in a dangerous condition; that he wrongfully, negligently and carelessly ccoused or permitted a large quantity of wire to remain on and above said sidewalk, so that at the time of the grievance and injury to the plaintiff, hereinafter mentioned, on May 11th, 1897, and for a long time prior thereto, said sidewalk and premises were in an unsafe and dangerous condition to the knowledge of said defendants.” Robert J. Mahon, for the appellants. John C. Kennedy, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The general rule that pleadings are to be liberally construed, and that they are not obnoxious to demurrer where a cause of action or ' a defense can be proved under them, it is claimed, requires that, where a material allegation is in the- alternative, it shall be taken in its weaker sense. It is insisted that the language in the complaint, that the defendants “ caused- or permitted,” etc., is equivalent merely to an allegation that they “ permitted ” the wire to remain upon the sidewalk. It is true that the sidewalk is under the control of the city authorities, and-that the duty devolves upon them to remove obstruct tions therefrom; and the fact that the owner or lessee of premises abutting on the sidewalk has not removed such obstructions would not create a liability against such owner or lessee. (City of Rochester v. Campbell, 123 N. Y. 405 ; Moore v. Gadsden, 87 id. 84.) In the latter case it is said: “ If by reason of obstruction, which it was the duty of the city or its officers to remove, it failed to do its office, the defendant cannot be made liable.” Liability, with reference to obstructions on the sidewalk, as against the owner or lessee, ■must be predicated upon some duty which the person sought to be charged owed (Matthews v. De Groff, 13 App. Div. 356), or upon some affirmative act which- results in. the creation of a nuisance. The distinction between actions for nuisance and those for negligence is clearly pointed out in Dickinson v. The Mayor (92 N. Y. 588) in the following language : “ The allegations in complaint tend to establish that the defendant neglected to perform a duty by not removing the ice and snow from the walk. . This was not an averment for keeping, maintaining and suffering a nuisance, but merely for negligence in not .removing the ice and snow. The complaint was not for a positive wrong committed by the defendant, but for .an injury sustained by reason of defendant’s negligence. The authorities establish a distinction between an action for wrong and an action for negligence.” (See, also, McConnell v. Bostelmann, 72 HGun, 238, where the cases are collated and discussed.) There, might, therefore, be some strength in the defendants’ contention if the view.that the word .“ permit” means simply that the defendants suffered or allowed the wire to remain on the sidewalk were to prevail. While it is true that the verb “to permit” is in one sense synonymous with' “ to suffer,” “ to allow ”' or “ to let,” it also is equivalent to “ to give leave,” “ to license,” “ to warrant in writing,” “ to grant,” “ to empower,” “ to authorize,” “ to sanction; ” and in reading the allegations of the complaint as a whole it will be seen that what the plaintiff charges the defendants with is the creation or the giving permission to continue a nuisance. That this latter is the meaning which the plaintiff intended to give to the word “ permit ” is evident from the language preceding, i. e., that the defendants “ caused,” which is indicative of an intention to charge the defendants with some affirmative action in having either placed the wire on the sidewalk or given permission to have it so placed; and it would be giving too narrow and technical a meaning, and would abrogate the rules in reference to construing pleadings liberally in order to support them, were we to hold that by the use of the word “permit” the plaintiff intended only to charge the defendants with suffering an obstruction, which was placed there by somebody else, to remain on the sidewalk. With respect to the separate demurrer of the agent, upon the view which we' take, that the complaint charges the creation or maintenance of a nuisance, not only the principal whose agent did the act complained of, but also the agent for his own wrongful act in that regard, would be liable. We think, therefore, that -the demurrers were properly overruled and the judgment appealed from should be affirmed, with costs, with leave to withdraw demurrers and answer over on payment of costs. . Yan Brunt, P. J., Baeeett, Rujisey and Patteeson, JJ., concurred. Judgment affirmed, with costs, with leave to withdraw demurrers and answer over on payment of costs in this court and in the court below.