Moody v. Mayor of New York , 43 Barb. 282 ( 1865 )

By the Court,

Clerke, J.

Hone of the cases cited by the counsel for the defendant are available for him. On the contrary, Cheetham v. Hampson (4 Term R. 318) is against him. A case (Rosewell v. Prior, Salk. 460) was cited by counsel, to show that an action was maintained against the owner of premises, who was not in possession, for a nuisance, in making an erection which stopped ancient lights. Bui-

[New York General Term, February 6, 1865.

ler, J., in delivering his opinion in Cheetham v. Hampson, refers to Rosewell v. Prior, and remarks that it was very distinguishable from the case then under consideration. “For there,” he says, “the owner let the premises with the nuisance complained of, which had been before erected upon them.” The injuiy to the plaintiff in the present case arose not from any want of repairs arising out of the use, but from the defective construction and dangerous condition of the pier. The defendants, the owners, let the pier “with the defect complained of,” and are consequently liable for the injury sustained by the plaintiff.

There should be judgment for the plaintiff on the verdict, with costs.

Ingraham, Clerke and Sutherland, Justices.]