Gustaf Birch, as Administrator, etc., of Emil Birch, Deceased, Appellant, v. The City of New York, Respondent

Gustaf Birch, as Administrator, etc., of Emil Birch, Deceased, Appellant, v. The City of New York, Respondent. Second Department, October 4, 1907. Municipal corporations — negligence — defective dock—assumption of risk. The city of New York is required to keep docks acquired under chapter 758 of the Laws of 1894, as amended by chapter 931 of the Laws of 1895, in a condition of reasonable safety while in public use, and is liable for the death of one who, without knowing' the condition of the dock, stepped from a boat upon said dock in the dark, fell through a hole and was drowned. In an action to recover for such. death when it is shown that the decedent had never been on the dock before, the complaint should not. be dismissed on the theory that the dock had been maintained in a dilapidated condition so long that one using it assumed the risk. Woodwaed and Jenks, JJ., dissented with opinion. ■ Appeal by the' plaintiff, Gustaf Birch, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th day of December, 1906, as amended by an order entered in said clerk’s office on the 22d day of December, 1906, upon the dismissal of the complaint by direction- of the court at the close of the plaintiff’s' case upon a trial' at the' Kings County Trial Term. . Isaac M. Kapper, for the appellant. James D. Bell and William B. Ellison, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The plaintiff’s intestate, a boy seventeen years of age, was on a tugboat on the night of July 26, 1903, taking a pleasure sail. When the captain of the tug desired to put the passengers ashore the water xyas so rough that he did not deem it safe to land them by means of certain small boats in which they had come to the tug. He landed them at a pier on the shore of the East river belonging to the defendant, and when the plaintiff’s intestate stepped upon the pier he went through a hole occasioned by the absence of a plank and was drowned. The boy had never been, on the pier before and.knew nothing about its condition, so far as the evidence shows, The night was described by one of the witnesses as being “pretty dark.” • ' .1 think there was sufficient’in the case to require the submission to the jury of the question of the defendant’s negligence. The pier was acquired, by purchase under' the provisions of. chapter 758 of the Laws of 1894, as amended by chapter 931 of the Laws of 1895. It is unnecessary to refer in detail to' the legislation further than to. say that it provides for the selection, laying out, construction and maintenance by cities having a population in excess of 800,000-of a public driveway and parkway, and the acquisition of riparian rights, public places, wharves, piers and appurtenances in connection therewith. As the case is presented it ’ is undisputed.-that from tjie time of the acquisition by the defendant of the pier in question and its approaches, covering a period of many years, nothing whatever was done by the defendant to keep it in reasonable condition for public use, and that during all that time the public was permitted with the defendant’s knowledge to use it so far as it could be used without restriction. It was used constantly and openly by parties fishing and swimming or enjoying pleasure-excursions, and it.was also used occasionally by contractors in landing materials under permit froth the city authorities. The evidence is ample to justify a jury in concluding that a tragedy such as has occurred was reasonably to be exnected. It needs no citation of authorities to show that in- the cirenrn-' ■stances stated the duty rested on the municipality to keep all its property while in public use in a condition of reasonable safety. I do not understand that the dismissal of the complaint was based upon a denial of such duty, but was rather based upon the fact that the' structure was so dilapidated as in itself to.place upon any one using it the burden of the assumption of the risk in so doing. The learned’ trial court said : “ I conceive plainly why the city should be responsible in a measure, at least for care to see to it. that a pier so situated and used is safe, but here is a ruinous old tumbled down structure built nobody knows when, but it has been ruinous for ten' years.. There has been no attempt to repair it. Thé evidence here would- not warrant anybody in. concluding that it had ever been held, out to the public or to anybody as a safe place, or a place that might be used for any purpose, and there is certainly no public road to it.” ■ I do not think there is any support in' law for' the proposition that a municipal corporation can obtain immunity by reason merely of the great length of time during which it has permitted its property to become and to be ruinous, or that it could acquire such immunity by reason of the great extent of the risk and danger thus occasioned. Hegligence in law is the violation of duty by an- omission o.r a commission which creates a menace, and when the menace becomes effective by causing injury to. a blameless person, liability necessarily follows. It seems illogical to say that if the city had done anything in discharge of its admitted duty to try and make this tumbled-down structure safe, it would have been liable, but that inasmuch as it has done nothing whatever in that regard, it is to be held exempt. The judgment should be reversed. Rich and Miller, JJ., concurred; Woodward, J., read for affirmance, with whom Jenks, J., concurred. [DISSENT — Woodward, J.] Woodward, J. (dissenting) ; Plaintiff’s intestate, a boy seventeen years of age, on the 26th day of July, 1903, went out with a party in a tugboat for a pleasure excursion. The party boarded the tug by means of rowboats, but on returning the water was rough and the captain of the boat landed at á pier on the shore of the East river, the property of the defendant. Plaintiff’s intestate stepped out upon the dock, took a step forward and disappeared through a hole in the dock. lie was not-again seen alive. From a judgment of nonsuit the' plaintiff appeals to this court. . The dock in question was originally owned by private parties. It was purchased under legislative authority by the county of Kings for the purpose of constructing what was known as the Shore road, and subsequently came into the ownership of the defendant through the provisions of the .Greater New York charter. The pier in question has not been held out as a public pier at any time since it came into the ownership of the defendant or its immediate predecessor in title ; it appears to have been left substantially as it existed at the time the property was purchased ■ from the original owner, subject to the action of the elements, and with no purpose on the part of either of the municipalities to make any use of it as a dock, or for public purposes. It' came into the ownership of the defendant merely as an;-incident to its parkway system, and was apparently considered of no practical utility*,, and 'the fact that .persons have fished from this dock, or that two contractors,; under permits from the park'commissioners, have, used the dock for a- temporary purpose, does not constitute this, a public dock* nor does it hold out an invitation for its, use. by the public. Under the facts disclosed .by the evidence there was no liability on the part of the defendant, and the nonsuit was properly granted. Jerks, J.,.concurred. Judgment reversed and new trial granted, -costs to abide the event.-