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[Vol. 146.

Second Department, October, 1911. August P. Wagener, for the appellant.

William B. Hurd, for the respondent.

WOODWARD, J.:

The plaintiff brought an equitable action against this defendant and his wife, alleging the same state of facts pleaded in this action, and had judgment. This judgment was reversed and a new trial granted (131 App. Div. 301), but the plaintiff discontinued that action and instituted the present action at law to recover for a breach of the agreement set forth in the complaint and admitted in the answer. The complaint alleges that the plaintiff, defendant's father, furnished $4,200, the purchase price of certain premises in the borough of Brooklyn, upon the condition that the defendant should furnish the plaintiff a home and suitable medical and other attendance during his natural lifetime, and to give him a proper burial, and it is alleged that the defendant promised to put this agreement in writing. It is also alleged that the plaintiff went to live with the defendant in 1906, and that he continued to reside with the defendant until 1908, when he left the premises because of “the continued violations by the defendant of the agreement, and of the wrongful acts on the part of the said defendant and his wife Ada Pritchard committed by the wife in the presence of said defendant and with his connivance and by reason of the neglect, want of care, cruelty, failure and refusal to provide suitable board, clothing, care and attention, or a suitable bed or room to sleep in, or medical aid and assistance, this plaintiff was compelled to and did leave the home of the defendant; that the foregoing wrongful acts on the part of the defendant constituted a breach of the agreement entered into between plaintiff and said defendant.” The complaint then makes some allegations to the effect that the defendant agreed to put the contract in writing and to carry out said agreement, and that plaintiff relied upon this promise, and would not have parted with his money except for such promise, and that the defendant made such promise for the purpose of cheating and defrauding the plaintiff out of his money, and demands judgment for the the sum of $1,200, with interest.

The defendant admitted the contract alleged in the comApp. Div.] Second Department, October, 1911. plaint, and there was no evidence in the case calculated to support the allegation that the defendant, by his promise to put the agreement in writing, intended to cheat and defraud the plaintiff, so that the case as it was presented at the close of the testimony was merely an action for the breach of the defendant's contract to support his father during the latter's natural lifetime. This was charged by the learned court without objection on the part of the plaintiff, and the jury brought in a verdict for $3,500. On motion of defendant this verdict was set aside, on the ground that there was no evidence in the case to support the finding of damages.

Upon this appeal the plaintiff urges that the defendant's refusal to execute the written agreement was a breach of the contract entered into between plaintiff and defendant, and that the plaintiff is entitled to recover the amount paid by him upon the purchase price of the premises occupied by the defendant, without any reference to the question of damages. This is not the law of this case upon the pleadings and evidence as they now stand. One can hardly be said to be damaged by a failure to put in writing a contract which the defendant admits to have been made, and as to which there is no dispute as to any of the details, and the allegations of the complaint are that the breach consisted in the wrongful acts of the defendant by which the plaintiff was deprived, not of the written agreement, but of the benefits of an agreement conceded to exist. Under such circumstances the plaintiff is clearly not entitled to a return of his money, but to the damages resulting from a failure to perform the contract on the part of the defendant, and there should be evidence of the value of the contract to justify a verdict.

The order appealed from should be affirmed, with costs.
JENKS, P. J., BURR, THOMAS and Rich, JJ., concurred.

Order affirmed, with costs.

Second Department, October, 1911.

(Vol. 146.

ANNA THOMAS, Appellant, v. THE CITY OF NEW YORK,

Respondent.

Second Department, October 27, 1911. Municipal corporation - negligence fall into manhole - removal of

cover — necessary elements of proof. In order to charge a municipality with liability for an injury to a pedes

trian caused by an obstruction placed in a street by a stranger without authority, it must appear that the municipality had notice, express or implied, of the obstruction prior to the accident and failed to remove it

within a reasonable time. A municipality is not bound to anticipate infractions by third persons of

the laws and ordinances relating to its streets. Hence, a pedestrian in a public park who sustained injuries by falling

into a manhole from which the grating had been removed cannot recover from the city in the absence of evidence showing either who removed the grating or the length of time it had been removed, or that

the same was not adapted to the use to which it was put. The city was not bound to exercise diligence to see that no one removed

the grating, for it had no reason to anticipate that it would be interfered with, inasmuch as it was of an approved construction and of a

type which had been used many years without accident. THOMAS, J., dissented.

APPEAL by the plaintiff, Anna Thomas, 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 14th day of February, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the Kings County Trial Term.

Franklin Taylor, for the appellant.

James D. Bell [Frank Julian Price and Archibald R Watson with him on the brief], for the respondent.

WOODWARD, J.:

The plaintiff, being nonsuited, is entitled to the most favorable view of the evidence, and this shows that on the 13th day of October, 1907, at seven-ten P. M., the plaintiff was walking with her husband and three children across the plaza in Prospect Park. There was a grass plot surrounded by a walk, with a curb and gutter outside of the walk. In the practical con

App. Div.] Second Department, October, 1911. struction of this gutter there was a manhole, the exact size of which is not disclosed by the evidence, and this was originally covered by an oblong grating conforming to the curve of the gutter, weighing about fifteen pounds. At the time plaintiff reached this point, and with her husband a few feet in advance, this grating was not over the manhole, as it was designed to be, and the plaintiff walked into the hole and was painfully injured. It was just between darkness and daylight, the electric lights being lit, and it may be assumed that the plaintiff was free from negligence contributing to the accident, as she had no reason to anticipate the opening. It was conceded by the pleadings that the city of New York had maintained the covering upon this manhole for a period of several months without any other fastening than the weight of the grating placed in the slot designed to keep the same at the common level of the gutter, and while there was some testimony as to methods which might be used to fasten these manhole covers, there was no evidence that any city had ever made use of these fastenings forthe purpose of fastening gutter grates in a situation such as was here involved, or that in the use of such gutter grates in the city of New York any reason existed for anticipating danger from their removal by any accidental cause. So far as appears from the evidence, these gutter grates were adapted to the use to which they were put, had never resulted in an accident, and there was no reason to anticipate that they would get out of place by any of the proper uses of the highway in which they were placed. This particular grate, with others, had been maintained for months without accident, and the evidence suggests no way in which this grating, weighing fifteen pounds, could be removed from its slot in the gutter without lifting the same out bodily. This being the case, and there being no evidence as to the person who removed the same, or the length of time which it had been out of place, the municipality cannot be held liable, and the learned court properly dismissed the complaint. The rule is well established that, in order to charge a municipality for an injury happening to a third person using a street therein, from an unlawful obstruction placed therein by a stranger without authority, it must appear that it had notice, express or

APP. Div.-VOL. CXLVI. 33

Second Department, October, 1911.

[Vol. 146. implied, of the existence of the obstruction before the accident, and that a reasonable time had elapsed subsequent to the notice and before the injury, during which it could have abated the nuisance, and it is likewise the general rule that a municipality is not bound to anticipate infractions by third persons of the law or ordinances relating to its streets, enacted to secure their safety and an unobstructed right of passage. (Farley v. Mayor, etc., 152 N. Y. 222, 226.) Here there was no evidence to show that the grating had been out of place for a period of one minute; for all that appears in the evidence, the covering may have been in place up to the very moment that the plaintiff came in sight of the spot, for there is no evidence whatever upon the point. There was a time when this cover is conceded to have been in place; the pleadings allege that the city had maintained it for months prior to the accident, this being relied upon as the primary, negligence, and the presumption arises that the cover, weighing fifteen pounds, having been placed over this hole in the gutter in a groove cut or made for that purpose, remained there until a different state of facts is established by the evidence. No time is attempted to be fixed when the cover was removed; all that we have is that it was not there at the moment of the accident. The defendant was not bound to exercise diligence to see that no one removed this cover, for it had no reason to anticipate that it would be removed; it was not required to exercise this degree of diligence as to a matter of construction approved by long usage and experience, and the plaintiff has failed to establish the facts necessary to constitute a cause of action.

Under the circumstances, it does not appear to be necessary to determine whether the notice of the claim was properly served or not.

The judgment appealed from should be affirmed, with costs.

JENKS, P. J., CARR and RICH, JJ., concurred; THOMAS, J., dissented upon the ground that the burden was on the city, in control and possession of the grating, to show that it was not removed by its agency.

Judgment affirmed, with costs.

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