Mary English, Administratrix, etc., Appellant, v. John Brennan, Respondent

Mary English, Administratrix, etc., Appellant, v. John Brennan, Respondent. (Argued January 29, 1875; decided February 9, 1875.) This was an action to recover damages for the alleged negligence of defendant, causing the death of plaintiff’s intestate. In 1864, a pole was erected in front of premises in Brooklyn, at the outer line of the sidewalk at the point of intersection of the traveled part of two streets, which premises defendant subsequently purchased. In 1872, a political club rented a room in defendant’s building and held its meetings there. Defendant was a member of the club. A banner was ordered by a committee of the club, which was placed on the pole; this having become decayed, broke with the weight of the banner, and in its fall struck the deceased, causing his death. Defendant was not a member of the committee, and gave no directions and took no part in raising the banner, although he knew of it. Defendant’s lot was a corner lot. The description in his deed began as follows: “ Beginning at the southwesterly corner of Flushing and Clermont avenues, running thence westerly along Flushing avenue twenty-five feet) thence southerly at right angles to Flushing avenue seventy-nine feet nine inches to a point distant forty feet seven and a half inches westerly from the westerly side of Clermont avenue.” Plaintiff was nonsuited. Held, no error; that defendant was not liable for the acts of his associates in the club, although intended to further the objects of the organization; that the pole, on account of its decayed condition, had become a nuisance, and if on defendant’s land, he would have been liable for permitting it to remain; but that his title only went to the sides, not to the center of the streets, and did not include the place where the pole stood, and no duty, therefore, rested upon him to remove the nuisance, which he did not create, although it stood on the sidewalk nearest his premises. The court state, in substance, that the presumption is that the owner of land abutting on a highway owns to the center (citing Bissell v. N. Y. O. B. B. Go., 23 ]ST. Y., 61), but is much less strong in respect to lots in large cities; also, that in construing a grant of land adjacent to a highway, it is presumed that the grantor intended to convey his interest in the street, but the presumption is rebutted if it appears by the description that he intended to exclude the street from the conveyance. Nathaniel C. Moak for the appellant. I. S. Catlin for the respondent. [MAJORITY — Andrews, J:,] Andrews, J:, reads for affirmance. All concur. Judgment affirmed.