The only ground upon which it is claimed that the defendant is liable for the . injury sustained by the plaintiff is that it was negligent in allowing a truck to remain in a public street whereby the street was rendered unsafe for its use by the plaintiff. It is not claimed that the city of New York was the owner of the truck or placed it in the street, but that it was the duty of the city of New York to remove the truck from the street, and so give to the plaintiff the free and uninterrupted use of the whole street. A person leaving. a truck in a public street at night would undoubtedly be maintaining .a nuisance, and would be liable for an injury sustained by any one in consequence thereof, but a municipal corporation is only liable for neglect in the performance of the duty imposed upon it by law, of -removing or abating a nuisance when created in a street. To justify a finding of such negligence it is necessary to show either that express notice was given to the municipality of the existence of the nuisance and'that a sufficient time had. elapsed to enable the municipal corporation to- abate it, or that the unsafe condition of the street had existed for such a time that notice to the city authorities could be presumed, and, a sufficient time for the abatement of the *539nuisance after such presumptive notice. We think that this case fails to show either such notice or that a nuisance had been maintained for a sufficient time to justify a presumption of notice.
It would appear that this truck was in daily use, its owner removing it in the morning and occasionally leaving it in the street at night. There could be no presumption that, because he had left it in the street other nights contrary to law and the corporation ordinance, he would on the night in question repeat this illegal act. Eor was there any presumption that he would select this particular spot to leave his truck, so that the city could have on hand its agent to remove it as soon as he had left it there. There is evidence to. show that on prior nights he had selected this particular spot at which to leave his truck, but on each night that it was left there, before the city could have notice of the fact that it had been left there, it had been removed. Thus, if the city had attempted to abate the nuisance maintained by the owner of this truck on prior nights, before its officers could have got to the place at which the truck had been left it would have been removed by the owner of the truck, himself; and, as before stated, the fact that this owner had on prior nights left his truck in the street at this particular spot could not be held to have been notice to the defendant that he intended to again leave the truck at this particular spot.
We do not think that this case is distinguishable from the case of Breil v. City of Buffalo (144 N. Y. 165). There it appeared that the owner of the house fronting upon the public street was engaged in tilling up his lot by bringing dirt to the street in front of his house, where it was unloaded and then drawn in wheelbarrows into the yard belonging to him. At times the dirt was drawn to thé Street faster than it was wheeled away, and in that manner it accumulated during the day. Upon one occasion the dirt had been allowed to accumulate in the stréet so fast that it was not all drawn away during the day, and a pile of dirt remained in the street during the night in consequence of which the plaintiff was injured.. It was held that “ the act of Franklin in permitting the dirt to remain in the street on the night of the accident was not sufficient to charge the city with any negligence whatever. Under the circumstances there could have been no presumption that the dirt would be permitted to remain over night even if the city officers had seen it there *540during the day.” If the officers of the city had, on the preceding-night, seen this truck standing in the street, the city could only have removed the truck to the corporation yard and taken proceedings against the defendant and subjected him to such penalty as had been incurred by him in leaving the truck in the street. The corporation authorities, could not have prevented the owner of the truck from regaining possession of the truck and again leaving it in the street; and unless we are prepared to hold that every truck placed in the street by any one must be removed by the city within three or four hours after it is so placed, or that, in default of such removal, the city is liable to any one for any injury sustained in consequence of the truck being in the street, we cannot hold that the city neglected its duty in not removing this truck from the street on the night in question. jSTo case with which we are acquainted has held that the city is responsible for an accident happening inconsequence of a collision between two wagons in a street* whether both of such wagons are attached to horses or not, without proof that one of such wagons had been left in the street in such a position as to render the street' Unsafe for rise for such a length of time that it had become the duty of the city to remove it. Such evidence was wholly wanting in this case, and we think that the complaint was properly dismissed.
The judgment must be affirmed, with costs."
Van-Brunt, P. J., and Patterson, J., concurred; Williams and O’Brien, Jj., dissented.