The place of the accident was a public street in the village of Ithaca. Its sidewalk was uneven upon the surface and slanting; it extended over and so bridged an excavation, three or four feet deep, at the bottom of which was a pile of sharp cornered stones, of such shape that a person falling upon them would receive serious injury. There was no railing or other guard upon either side of the walk. It does not appear to have been built by the defendant, but had been in this condition for about one year, and the defendant had notice of it a long time before the 13th of June, 1879. On that day the plaintiff, while traveling on foot over the walk, without fault on her part and by reason solely of its defective and unguarded condition, was precipitated from it upon the stones below. She was injured and brought this suit. The above facts were found by the referee, and he directed judgment in her favor. The General Term has reversed this decision upon the sole ground that the defendant neither built nor ordered the construction of the sidewalk.
In this was error. By charter the defendant's trustees are made commissioners of highways, and among other things are empowered to construct, repair or discontinue its streets and sidewalks, "and prevent the incumbering or obstructing the same in any manner." (Laws of 1864, chap. 257; Laws of 1871, chap. 140; Laws of 1875, chap. 287.) The *Page 30 order appealed from assumes that if the building of the walk had been a corporate act the defendant would have been liable. That is well settled. (Conrad v. Trustees of Village of Ithaca,16 N.Y. 158.) In such case it would be sufficient to show that the work was done by its authority. If the structure which caused the injury is erected on its land, or on premises which it controls, by permission of its officers, the same result must follow. An equal liability is incurred when by omission to repair or compel the removal of a walk constructed without their authority, but of the existence of which they have notice, a way dangerous for travel is allowed to stand within the limits of its streets. In such a case it is their duty to repair or remove it, and with money in hand or power to procure it, there is no ground for irresponsibility. One or the other of these things must be done. It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is matter of discretion not to be regulated by the courts, yet when a sidewalk is built with or without its permission, it becomes responsible for its condition and bound so long as it exists to keep it in order. This duty is ministerial and not judicial. (Hines v. City of Lockport, 50 N.Y. 239; Hyatt v. Villageof Rondout, 44 Barb. 395; 41 N.Y. 619; Vogel v. Mayor, etc., 92 id. 10; 44 Am. Rep. 349.) In this case, therefore, it can make no difference how the walk came into existence, if the corporation, with notice, permitted it to be used for public travel. By the act of the builder, and acceptance or acquiescence in the building of it on the part of the defendant's officers, they had control over it, and it became the property of the village as completely as if it had been put in position by the village itself. The principle upon which the above cases were decided uphold this proposition, and the case of Requa v. Cityof Rochester (45 N.Y. 129; 6 Am. Rep. 52), to the same effect, is so like the case before us as to make it decisive in favor of the appellant.
That of Urquhart v. Ogdensburg (91 N.Y. 67; 43 Am. Rep. 655) is relied on by the respondent. There the sidewalk needed no repair and the complaint related to the plan of its *Page 31 construction. As that was within the judicial discretion of the defendant, negligence could not be predicated of it.
The learned counsel for the respondent also seeks to sustain the order of the General Term upon grounds not noticed by them, alleging that the evidence failed to disclose either defects in the walk or proper care on the part of the plaintiff in using the walk. It is a sufficient answer to these positions if there was evidence, which, in some reasonable aspect, might sustain the finding of the referee. In such a case it will not be reviewed by this court. An examination of the testimony shows that there is nothing obviously wrong in his conclusions and we find no reason for interfering with them. The merits were well considered, and the record discloses no legal error committed by the referee. His decision stands upon sound policy and is a proper recognition of the duty of public officers to have regard to the business intrusted to them, upon the performance of which the safety of the citizen depends.
The order of the General Term should, therefore, be reversed, and the judgment entered upon the report of the referee affirmed.
All concur, except RAPALLO and FINCH, JJ., not voting.
Order reversed and judgment affirmed.