placing of fire escapes upon all buildings, but only upon certain types. The complaint contains no description of the buildings. The allegation that derendant unlawfully failed to provide fire escapes, in the absence of such description, must be regarded as a conclusion of law not admitted by demurrer."

These views were subsequently followed by other justices, who granted the defendant's motions for judgment upon the pleadings on a complaint containing allegations similar to those set forth as a first cause of action. Cecelia Zalmani v. Eisfeldt, N. Y. Law Journal, June 21, 1919; Hale v. Same, Id., August 2, 1919; George F. Murray, Jr., v. Same, Id., September 10, 1919; Luella Murray v. Same, Id., October 28, 1919; Blalock v. Same, Id., November 6, 1919; George F. Murray, Jr., v. Same, Action No. 2, Id., January 10, 1920. I concur in the reasoning and conclusion reached by Mr. Justice Philbin in Rita Zalmani v. Eisfeldt, supra. Here, as in that case, the plaintiff has failed to plead any facts showing that the defendant was under any obligation whatever to provide fire escapes, and therefore the facts alleged in the first cause of action are insufficient.

[2, 3] For a second cause of action the amended complaint repeats all the allegations of the first cause of action, charging negligence, and then alleges as follows:

"Eleventh. That at the time of said fire, and for some time prior thereto, the defendant, her agents and servants, suffered and maintained the aforesaid premises in an unsafe and dangerous condition, and negligently and unlawfully suffered, maintained, and permitted the skylight and exit to the roof of said premises to be in a defective, unsafe, and dangerous condition, so that the said premises constituted a nuisance and was a danger and menace to the life, limb, and safety of those having occasion to use the same. That the injuries received by the plaintiff were due to the negligence of the defendant, her agents and servants, and the maintenance of the nuisance aforesaid."

"Twelfth. That solely by reason of the defendant's negligence as aforesaid plaintiff received severe and serious burns and injuries to his body of a permanent nature."

The same facts are pleaded as the third cause of action for loss of personal property. It will be seen that the plaintiff in such alleged second and third cause of action attempts to set out a cause of action based on nuisance, and that he has attempted to do this by combining allegations charging negligence with those charging nuisance. As already stated, the amended complaint alleges that the plaintiff was injured while attempting to escape from the fire through a skylight in the roof. The amended complaint, so far as concerns the alleged second and third cause of action, contains no allegation that the skylight was intended to be used as a means of exit in case of fire, nor does it allege that the skylight was dangerous or unsafe to any one, except as a means of escape in the event of a fire. Furthermore, the amended complaint does not plead any statute or ordinance under which it was the duty of the defendant to furnish a skylight as a means of escape to the roof in case of fire, nor do I know of any such. It is well settled that the complaint must allege facts showing the existence of the obligation which the action seeks to assert against the landlord. City of Buffalo v. Holloway, 7 N. Y. 493, 498, 57 Am. Dec. 550; Fairchild v. Leo, 149 App. Div. 31, 34, 133 N. Y. Supp.

(182 N.Y.S.)

572; Pagnillo v. Mack Paving & Const. Co., 142 App. Div. 491, 494, 127 N. Y. Supp. 72; McGuinness v. Allison Realty Co., 46 Misc. Rep. 8, 9, 93 N. Y. Supp. 267. The amended complaint fails to conform to these requirements.

Moreover, it does not contain any description of the character of the building in question, and hence the case is not brought within the provisions of the Tenement House Law (Consol. Laws, c. 61). Even under the latter enactment skylights are required only as a "means of light and ventilation," with a minimum opening of 40 square inches (section 77), and hence are manifestly not intended by the statute as a means of exit. It is plain that such a skylight is not a door, but "a window, usually glazed, facing skyward." Standard Dictionary, p. 1682. The pleader may have had in mind the "scuttle" required by section 32 of the Tenement House Law; but no facts are pleaded to bring the case within those provisions, which apply only to tenement houses. Inasmuch as no facts are alleged in the amended complaint from which it may, even by fair intendment, be inferred to have been the duty of the defendant to provide fire escapes, the mere allegation in each of the three causes of action that it was the defendant's duty to do so, under the circumstances disclosed, is a conclusion of law, and as already shown, so also are the allegations of the second and third cause of action that the skylight was a nuisance. Ennis v. Myers, 29 App. Div. 382, 384, 385, 51 N. Y. Supp. 550; Mauer v. Egan, 182 N. Y. Supp. 180. In this view, the facts pleaded as a first, second and third cause of action are insufficient to constitute a cause of action, and consequently the motion for judgment dismissing the amended complaint should be granted.

Motion granted, with $10 costs, but with leave to the plaintiff to serve a second amended complaint within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof, and upon payment of such costs. Settle order on notice.

(191 App. Div. 753)

LAUT v. CITY OF ALBANY et al.

(Supreme Court, Appellate Division, Third Department. May 14, 1920.) 1. Municipal corporations 818 (11)-Evidence that, after automobile accident, crushed stone was spread over oil, held error.

Where plaintiff's automobile, after skidding on a street recently covered with oil placed thereon during the course of repairs, was struck by another car, which also skidded for the same reason, and plaintiff sued the city and also the oil company spreading the oil, admission of evidence by the superintendent that, on the day after the accident, he put crushed stone on top of the oil by orders of his superior, thinking it advisable to do so, held error.

2. Trial 251 (2)—Instruction submitting issue of negligence not alleged held improper.

Where plaintiff's automobile, after skidding on a street made slippery by oil spread thereon during repairs, was struck by another automobile, skidding for the same reason, an instruction submitting the question as to whether the use of oil was proper, stating that plaintiff claimed it was For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

improper, was erroneous, where negligence as to the use of improper materials was not alleged in the complaint.

3. Municipal corporations 822 (5) —Refusal to charge that company repairing street was independent contractor held error.

Where plaintiff's automobile, after skidding on a pavement made slippery by the use of oil, was struck by another automobile, skidding for the same reason, and plaintiff sued both the city and the company repairing the street, and such company was an independent contractor, and not an employé of the city, it was error to refuse to so charge.

John M. Kellogg, P. J., dissenting.

Appeal from Albany County Court.

Action by Harry J. Laut against the City of Albany and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial granted.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Arthur L. Andrews, of Albany (John J. McManus, of Albany, of counsel), for appellant city of Albany.

Visscher, Whalen & Austin, of Albany, for appellant Standard Oil Co.

Henry J. Crawford, of Albany, for respondent.

KILEY, J. On the afternoon of July 30, 1918, the defendant the city of Albany, by some previous arrangement had with the defendant the Standard Oil Company, placed upon the macadam surface of one of its streets, known as the Southern Boulevard, oil, liquid tar, or road material, generally used for that purpose. This boulevard runs approximately north and south. The width is given from 50 to 80 feet. The macadam is 18 feet wide, laid down in the center of the boulevard. It was not lighted. Toward the northern end of this street and the macadam there is a slight curve for some little distance, and the surface slopes from the west toward the east. The oil or substance so put upon the street covered a space of about 100 feet in length and all of the macadam surface, except a strip of about 2 feet along the eastern edge: The plaintiff, between 8 and 9 o'clock in the evening of the afternoon of the day the repairing was done, approached this street from the north, going south. When he reached the curved and oiled macadam on the westerly side, his proper side to travel upon, his car commenced to slide. He put on the brakes, but that did not stop the car. It continued to skid or slide from the western side to the east, until it came to the dry eastern edge or dirt part of the surface. While plaintiff's car was standing where it had stopped, a car coming from the north toward the south slid or skidded in like manner as plaintiff's car had done, and collided with plaintiff's car, striking it in the rear and causing the damage complained of here. Plaintiff has sued the city and the Standard Oil Company. The negligence complained of is alleged in the complaint as follows:

"On information and belief, that on or about July 30, 1918, the defendants negligently and carelessly covered the entire surface of said boulevard with a

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

great and usual quantity of liquid tar, or road material, to a depth of nearly an inch, without covering said tar or material with sand or gravel, and without leaving any space for automobiles to pass over said boulevard, without passing over and through the said tar or material, and that said defendants negligently and carelessly permitted the said material to be and remain on the driveway of said boulevard in the manner aforesaid, and in such a way as to make it likely that automobiles would slip and skid, and in such a manner as to make it very dangerous for automobiles to pass over the same."

Defendants put in separate answers. There was but one trial, and it was stipulated that objections and exceptions taken by either of the attorneys for the respective parties should apply to both defendants. The verdict rendered was against the defendants jointly. Errors were committed in the reception of evidence, to which objections. and exceptions were duly taken; also errors were committed by the court in his charge to the jury, which call for a reversal of the judg

ment.

[1] Superintendent Bender, after testifying that it was not customary to cover the oil with crushed stone, where No. 4 oil was used, was asked by plaintiff's counsel, referring to the next day after the accident: "Did you cover this when you did go out there?" Objection and exception was duly taken, overruled, and witness answered that he did so under instructions from his superior. "Q. When you saw it the next day, you thought the situation was such you thought it advisable to put crushed stone on top?" Objection, and exception was overruled, and witness answered in the affirmative. This presents reversible error. Getty v. Town of Hamlin et al., 127 N. Y. 636, 27 N. E. 399, and cases cited; Innone v. United Engineering & Construction Co., 149 App. Div. 367, 134 N. Y. Supp. 313; Causa v. Kenny, 156 App. Div. 134. 141 N. Y. Supp. 98; Murphy v. McMahon, 179 App. Div. 837, 167 N. Y. Supp. 270. There are cases where acts and conditions after the accident may be shown, as, for instance, showing jurisdiction or control, or showing a condition that by its nature must have existed before the accident, illustrated in the case of Teasdale v. Malone Village, 17 App. Div. 185, 45 N. Y. Supp. 360.

[2] The court submitted to the jury the question as to whether the material (oil) used was proper; used the expression twice in his charge, stating that plaintiff claimed it was improper. No such negligence is alleged in the complaint, nor any evidence of improper material used appears in the record. On the other hand, it appears that the oil or substance used was that in common use for road purposes. The charge thus made was excepted to and presents error. The question was specifically submitted to the jury on a refusal of a request to charge, thus magnifying its supposed importance.

[3] The court charged, at the request of the city, appellant, that the relation of master and servant did not exist between the defendants; a request to charge that the defendant the Standard Oil Company was an independent contractor was refused. It was either the servant or an independent contractor. The cases where both parties can be charged have to partake of the nature of a copartnership or joint enterprise, entered into for mutual profit depending on the success

of the venture, as illustrated in Strother v. Elting, 97 N. Y. 102, 49 Am. Rep. 515. As the case stood at the time of the request, the defendant the Standard Oil Company was an independent contractor. It was error to refuse to so charge. Charlock v. Freel, 125 N. Y. 357, 26 N. E. 262; Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550; Frank v. City of Rome, 125 App. Div. 141, 109 N. Y. Supp. 247.

While my Associates do not agree with me, I think the question of notice to the appellant city was not properly disposed of. Section 244 of the Second Class Cities Law (Consol. Laws, c. 53) provides he city must have actual notice of the defect, or such defect must have existed so long as to charge it with constructive notice. That provision applies to the facts, circumstances, and parties involved here. McMullen v. City of Middletown, 187 N. Y. 37, 79 N. E. 863, 11 L. R. A. (N. S.) 391. It is conceded, or at least appears, that the appellant city of Albany did not have actual notice. Did the defect exist so long as to impute constructive notice to the city? This oil was put upon the street in the afternoon of July 30th, and the accident happened between 8 and 9 o'clock that evening. The first notice defendant city had was at 10 o'clock that evening. This is not sufficient time upon which to hold that defendant had constructive notice. Cohen v. City of New York, 204 N. Y. 424, 97 N. E. 866, 39 L. R. A. (N. S.) 985; McKee v. City of New York, 135 App. Div. 829, 120 N. Y. Supp. 149.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed, and new trial granted, with costs to the appellant to abide the event.

WOODWARD, COCHRANE, and HENRY T. KELLOGG, JJ.,

concur.

JOHN M. KELLOGG, P. J. (dissenting). The evidence compels the conclusion that the oiling of the Southern Boulevard, where the macadam leaves the asphalt and around the curve, with its sloping surface, made the road dangerous for automobile travel. The accidents happening at the place early in the evening render it unnecsary to discuss that part of the case. The oil was thick and heavy; the current of the testimony tends to show that it was a quarter of an inch or more in depth, and that it was impossible to steer an automobile around the curve without its skidding down the incline.

The jury could have found, and evidently did find, that the proper practice is to oil a macadam road with No. 4 or No. 6 oil; the No. 4 being a light oil, and the No. 6 much heavier. When the light oil is used, the oil company has a machine which, under great pressure, forces it into the macadam, if the surface is not too hard, and it is then unnecessary to top-dress the surface; but where the heavier oil is used, or the macadam is hard, a top dressing is required. With a light oil the street is oiled for its width at once, but with the heavier oil it is found necessary to oil one-half of the width, barricading against