The plaintiff was a coachman in the employ of Mrs. Jay. On the 21st day of November, 1900, at about four o’clock in the after*588noon, while driving her horses attached to a carriage down Fifth . avenue, and when opposite1 the building at the southwesterly corner of Forty-fourth street and Fifth avenue, known as “Sherry’s,” he was struck by part of a. skylight blown from the top of said building and sustained-injuries to recover .for which he brings this action against the owner of the premises.
Many objections to the recovery have been urged on the appeal, but in the view I take of the case it will only be necessary to con- • sider thre.e, which are:" First. That the complaint is for negligence, and the plaintiff failed to establish a cause of action ttpon that, theory. Second. That even" if the complaint be susceptible of a construction that the action is brought upon the theory of nuisance* the defendant is not liable. And, third, if the action be maintainable for nuisance, but not for negligence, the' jury were erroneously instructed. ' .
First. I am of opinion that the complaint is sufficient to authorize a recovery upon' the theory of nuisance. (Campbell v. U. S. Foundry Co., 73 Hun, 576; Smith v. Ingersoll-Sergeant Rock Drill Co., 7 Misc. Rep. 374; Moody v. Mayor, 43 Barb. 282.) The question as to whether the action is for negligence or for nuisance becomes quite important on the facts in this ease, and if it was submitted to the jury upon the theory of negligence the verdict cannot be sustained upon the theory of nuisance. (Martin v. Petit, 117 N. Y. 118.) It appears .that the owner had parted with - the possession of the premises, and that Louis Sherry had been in-possession underleases since the. 5tli day of June, 1896 ; and while the owner reserved the right to inspect the premises, yet under the lease the duty devolved upon the lessee to make all necessary repairs and to indemnify the owner and save him .harmless against “loss, liability or expense by. reason of accident or in jury to person or property occurring on.said premises or the sidewalks thereof, or by reason, of its use.” The building from, which the skylight was blown-was constructed by the tenant under the .first lease, pursuant -to • plans and specifications approved by the owner who, through an architect, supervised' the; construction ; but it was paid for by the owner and became his property, It ivas finished on the 1st day of September, 1898, and from that day the possession of the tenant _ was under a second lease which was executed concurrently with the *589first'and contained the provisions to which reference lias been made, and he continued in possession thereunder until after the accident. It thus appears that the owner had been out of possession of the premises for nearly four years and six months under the successive leases to Sherry, who had occupied them during that time; and that the owner had been out of possession of this completed building upwards of two years. As Hr. Justice Ingeaham observed in his concurring opinion on the former appeal herein (77 App. Div. 316): “ The rule res ipsa loquitur applies, and from the incident itself the jury are authorized to infer negligence.” (See Mullen v. St. John, 57 N. Y. 567; Breen v. N. Y. C. & H. R. R. R. Co., 109 id. 297; Griffen v. Manice, 166 id. 188.) It may well be also that it would be presumed in the first instance that the owner was in possession of his real property; but when it is shown that he has lawfully passed the entire possession and control of his property over to a tenant, that rule no longer obtains. (See Cross v. Koster, 17 App. Div. 402; Hexamer v. Webb, 101 N. Y. 377.) If the owner were in possession,' it might not be very material whether the complaint proceeds upon the ground of negligence or nuisance, because if he were.negligent, that would imply that the building had been in an unsafe and dangerous condition for such a length "of time that he should have known or discovered it and have made the necessary repairs before the accident; and if the building had been thus negligently permitted to remain in a dangerous condition, it would doubless be a public nuisance to those lawfully using the public streets. The case would then become quite analogous to the coal hole case, where the opening was duly authorised, and, therefore, not a nuisance, but through failure of the landlord or tenant to keep it in proper repair, it became a nuisance, in which case the facts constituting the negligence are the facts creating liability for nuisance. (Clifford v. Dam, 81 N. Y. 52.) It is manifest, however, that where, as here, the owner has lawfully parted with the entire possession of the building and the same has been in the exclusive possession of his tenant for a long time prior to the accident, the negligence which may be inferred under the rule res ipsa loquitur could not relate back, to the possession of the landlord. (See Edwards v. N. Y. & H. R. R. Co., 25 Hun, 634; affd., 98 N. Y. 245.) In such case, if the owner is liable at all, it is only upon the theory of 'nuisance. If the building was not a nui*590sanee, that is, in a condition to endanger the traveling public or adjacent property, or those lawfully thereon, at the time the defendant surrendered entire possession thereof to his tenant, he would not be liable if thereafter, by the act of the tenant or through his negligent omission to make repairs, they became dangerous and unsafe, but in such circumstances the tenant would be liable. (Washington v. Episcopal Church of St. Peter’s, 111 App. Div. 402 ; Papazian v. Baumgartner, 49 Misc. Rep. 244; Ahern v. Steele, 115 N. Y. 203 ; Edwards v. N. Y. & H. R. R. Co., supra ; Miller v. Woodhead, 104 N. Y. 471; Miller v. N. Y., L. & W. R. R. Co., 125 id. 118; Odell v. Solomon, 99 id. 635 ; Lansing v. Thompson, 8 App. Div. 54; Thomp. Neg. [2d ed.] § 1155.) It follows logically, therefore, that the owner cannot be liable upon the theory of negligence in not keeping the building in repair during the time the tenant was in exclusive possession. He would be liable, however, upon the theory of nuisance if he leased the premises and surrendered his possession with a nuisance thereon which he had created or of which he had either actual or constructive notice, or if he retained possession in part. (Swords v. Edgar, 59 N. Y. 28 ; Eakin v. Brown, 1 E. D. Smith, 36; Ahern v. Steele, 115 N. Y. 203; Timlin v. Standard Oil Co., 126 id. 514; Walsh v. Mead, 8 Hun, 387; McGrath v. Walker, 64 id. 179; Matthews v. De Groff, 13 App. Div. 356 ; Campbell v. U. S. Foundry Co., 73 Hun, 576 ; Trustees of Canandaigua v. Foster, 156 N. Y. 354.)
The complaint must, therefore, be examined to ascertain whether it sounds in negligence or in nuisance. The plaintiff alleges that the defendant was the owner of the building; that divers structures had been erected on the-roof of the building “.for some considerable time before and up to and at or about the time the plaintiff suffered the injury,” and that they “ were negligently, carelessly, dangerously and improperly made and constructed, in that the roofs thereof were improperly and . * * *• insecurely fastened to' the said structures, and in that the bricks of the said structure were improperly and insecurely laid with a poor and inferior quality of cement or mortar, so that the said roofs and bricks of the said structures were in ah unstable and dangerous condition and liable to be blown off the roof of the said building; ” that the attention of the defendant had been frequently called “to the dan*591gerous condition of the said structures and to their faulty construction, and to the danger of the bricks and roofs thereof falling upon passersby on Fifth avenue in front of the said building, but the defendant negligently and. carelessly neglected and refused to alter or -repair the said structures or to properly secure the same, and the roofs thereof, to the said structures, and the said defendant, well knowing the premises, negligently and carelessly permitted and allowed the said structures and the roofs thereof to be and remain in an improper, insecure and unsafe condition; ” that on the occasion in question, the roofs of said structures, or one of them, and the bricks, mortar and other building material used in the construction' of the said structures; or one of them, were blown frbm the roof of the building “ through the" carelessness and negligence of the defendant in allowing and permitting the said structures so erected on the roof of the building as aforesaid, to be and remain in said improper, unsafe and insecure condition as aforesaid, and in allowing and permitting the roofs thereof to remain improperly fastened to the said structures after he had been notified of the dangerous condition of the said structures and the roofs thereof,' as aforesaid.” I am of opinion that these allegations are sufficient to authorize a recovery on the theory of nuisance. It is not necessary to expressly charge that the defendant created or maintained a nuisance. (Coon v. Froment, 25 App. Div. 251; Campbell v. U. S. Foundry Co., supra ; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322; Sullivan v. Waterman, 20 R. I. 372.) Under our system of pleading, if the essential • facts are stated, it is not imperatively required that they should be characterized, although it is better to characterize them, for that tends to remove doubt as to the pleader’s theory. In some instances, as already observed, a recovery might be had upon either theory, and the difference between nuisance and negligence is not very plainly marked. A structure or business may be lawful, and yet become a nuisance through negligence in the maintenance or use thereof. (See Dunsbach v. Hollister, 49 Hun, 352; affd., 132 N. Y. 602; Clifford v. Dam, supra.) A nuisance in many, if not in most, instances, and especially with respect to buildings or premises, presupposes negligence. The existence of a nuisance on one’s premises does not conclusively establish his liability therefor, regardless of whether or not he is in possession and control thereof. If *592he did not create the nuisance or knowingly maintain it, he is not liable. (Ahern v. Steele, supra ; Finkelstein v. Huner, 77 App. Div. 424; affd., 179 N. Y. 548.) Of course, if he created Or participated in the creation of the nuisance, or in maintaining it, his conduct in' so doing might be characterized as negligent and perhaps also as unlawful. (See Finkelstein v. Huner, supra) Where liability for the nuisance is predicated upon the omission of the owner to abate the nuisance, rather than upon his having created it, then it is clear that negligence is involved.. It has often been held by the. courts that it is unnecessary to prove negligence where an action is brought for nuisance, and that the exercise of ordinary care is no defense (Clifford v. Dam, 81 N. Y. 52 ; Sexton v. Zett, 44 id. 430 ; Irvine v. Wood, 51 id. 224; Creed v. Hartmann, 29 id. 591; Lamming v. Galusha, 135 id. 239); but that is not a universal' rule, and obtains only when the nuisance is the result of an unauthorized or unlawful and wrongful act, as, for' instance, opening a public street without authority. The plaintiff makes out Iris prima faoie case by showing the nuisance and either that it was created by the defendant or existed in such manner that he is chargeable presumptively with knowledge thereof. . If the defendant created it or participated in the creation of it, his .liability is absolute ; but if the charge be that he merely maintained it,, then he may show that he did not create or discover it, and it could not have been discovered by the exercise of reasonable care; but of course lie may not exonerate himself upon the'theory of care in maintaining a nuisance of which lie knew, because it would be his imperative duty forthwith to abate it. In many instances it is essential to allege in some form, that the act .was unlawful in order to warrant a recovery upon the theory of nuisance, as, for instance, .where a public street or place has been interfered with by placing an obstruction therein, or opening or undermining the surface thereof without obtaining a-permit from the public authorities having control of the street, and in such case the liability is absolute as matter of law unless the defendant pleads and proves a license and due compliance with its conditions, or doing any other act without a license or permit where one is required. Here, however, the claim is not that the building was erected without a permit or the approval of the public autheri-' ties, but that it was improperly constructed or became an' unsafe *593structure when completed. The claim is not that it was not a lawful structure in the sense that it was constructed in violation of'law, but that it was an unsafe structure. The plaintiff does not merely charge a defective condition at the time of the accident owing to negligence in keeping it in repair, but he alleges in effect that the structure upon the roof which blew off and injured him was not properly constructed or attached to the roof originally. If these allegations be true, it was a nuisance and a recovery might be had upon that theory, notwithstanding the fact that the plaintiff characterizes the failure of the' defendant to properly construct and attach the structure as negligence, and the subsequent maintenance thereof as negligence.
Second. We come now to the question as to whether the plaintiff could, in any view of the evidence, sustain his action upon the theory of nuisance, and whether it was tried and submitted to the jury upon that theory. The plaintiff, on his affirmative case, presented no evidence as to the actual condition of the skylight from which he reóeived the injury, or as to the manner in which it was constructed or attached to the roof. He rested upon the doctrine res ipsa loquitur. Where that rule applies, the fact of the accident and the attendant circumstances, without further proof of the cause, warrant the inference of negligence; but.it is doubtful whether they alone would warrant the inference of such a negligent condition as would constitute a public nuisance, although in Vincett v. Cook (4 Hun, 318) the court appears to have been of opinion that they do. The decision of the question, however, was not necessarily involved in that case, nor is it, I think, in this, for here, at least, the owner was not in possession. The learned counsel for the plaintiff upon the trial insisted from the outset that he was proceeding upon the theory of nuisance. After the plaintiff rested the defendant offered evidence tending to show that the plans had been prepared by competent architects; that the contract had been let to competent builders; that the work had been performed in accordance with the plans and under the supervision of a competent superintendent, and that the building was constructed under the lease while possession was in the lessee. The plaintiff then, in rebuttal, presented evidence showing that the skylight, which consisted of a *594heavy-copper or iron framework and glass,, weighing between 1,200 ' and 1,500 pounds, covered an elevator .shaft which projected eight feet above the roof, the' dimensions of which1 were twelve' by eight feet, and rested on' brick walls inclosing the elevator shaft,, and" •tendmg to show that the skylight- was not directly attached- to the roof,-hut. only'to the brick'walls by iron rods or bars one inch in width and one-quarter of an -inch in thickness, extending down about eighteen inches or two feet on the inside of the walls, and about one inch of-the lower ends being bent outward and projecting- into the brick walls, and that this was not a proper construction, but that the skylight should have been bolted to the ro.of.
The evidence tends to show a very unusual condition- of' the weather -and a-most severe storm' at the time of the accident; that the- temperature' ranged from seventy to seventy-two degrees between-two and four o’clock that afternoon, which was the highest for. that day of the year in "the history of the weather bureau, which dated from 1812, and that, between four and six o’clock there was- a -rapid fall in temperature to sixtyhwo degrees at five o’clock; that there was a high wind at the average rate of thirty-five miles an hour from two to three o’clock; 'Of thirty-four miles an hour from three to four o’clock;. of forty-seven miles from four to. five o’clock,, and a, gale of fifty miles an h-otir- from .five to. six. o’clock; that during the five minutes ending at four-fifteen p. it; the- wind attained a velocity of seventy-three miles an hour; that it grew very- dark for that time of day; that it was raining at the time of the accident, and - the rain commenced at the Broadway weather bureau station at four-nine p. u. The records .of the weather bureau did- not show the velocity of the wind at -precisely four o’clock, but the fair inference is that the accident occurred' at about the time when -the wind attained its highest- velocity and just, as or after the storm reached that point. The highest wind ever recorded in the weather bureau for New York and vicinity was. eighty-three or eighty-four .miles an hou-r. The court submitted it to- the jury to determineiwhetlrer the storm was of such unusual violence- that the- defendant, in constructing the building, was hot obliged to .foresee and guard against the danger incident thereto.-1 am of opinion that this was a question" of fact for the' jury, although the case is not strong. on the- question of defective, con*595struction of the building such as would make" it a nuisance if the wind attained or nearly attained hurricane velocity. It is the duty of those constructing buildings in close proximity to the public street to exercise reasonable care to construct them with such safety and security that they will withstand any storm or wind that reasonably prudent men familiar with weather conditions in the locality -would anticipate might occur. (Vincett v. Cook, 4 Hun, 318; Haack v. Brooklyn Labor Lyceum Assn., 93 App. Div. 491.) But of course they are not insurers against their building blowing or falling into the street from a storm of hurricane velocity or from an earthquake. . The enforcement of these rules of law is essential alike to the safety of those using the public streets and to the protection of the rights of owners of property.
The court, in submitting the case to the jury, did not expressly submit it upon the theory of nuisance and frequently used the word “ negligence ” in speaking of the claims of the plaintiff and of the duty of the defendant. But the' court in this regard merely followed the complaint and very clearly instructed the jury that unless the skylight was improperly constructed and insecurely attached to the building originally, the defendant would not be liable. The cash was, therefore, in effect submitted to tbe jury upon the theory of nuisance.
The learned counsel for the appellant urges that the defendant is not even liable for nuisance, because the building was constructed, not by him, but by his tenant, who was in possession. As has been seen, the rule is well settled that a landlord who leases his premises with a nuisance thereon remains liable therefor. There is another rule, equally wrell settled, that every one who creates a nuisance or participates in the creation or maintenance thereof is liable for it, even though the work wTas done by an independent contractor. [Deming v. Terminal Railway of Buffalo, 169 N. Y. 1; Hawke v. Brown, 28 App. Div. 37; Duerr v. Consolidated Gas Co., 86 id. 14; Coon v. Froment, 25 id. 251; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 185; Weber v. Buffalo R. Co., 20 App. Div. 293; Creed v. Hartmann, supra; Wood Nuis. [2d ed.] § 114.) If the skylight when constructed was a nuisance, owing to the fact that it' "was not safely attached to the building, I am of opinion that the owner would be liable. It is not a case *596-of following plans which competent experts advised were safe, and while the owner did not possess special knowledge .sufficient to, judge for himself, in which case probably he would not be liable (Fox v. Ireland, 46 App. Div. 541; Burke v. Ireland, 166 N. Y. 305; Duerr v. Consolidated Gas Co., supra; Uggla v. Brokaw, 77 App. Div. 310), neither the plans nor the specifications contain a definite requirement with respect to the manner in which the skylight should be attached. The only requirement was that it should be safely attached. ¡Neither side presents evidence clearly showing how it was secured to the building or roof, or who determined the matter. It cannot be decided upon this record whether it was so attached that a person of ordinary intelligence, without special knowledge or training,, should have known whether it was unsafe or whether an owner would have been obliged to rely on that point upon experts specially skilled in such matters, and 'whether he did in such manner and to such extent that he would be relieved from the charge of personal negligence in knowingly participating in the creation of a nuisance, assuming that to be a defense. It is unnecessary to discuss at length the various provisions of the leases. They were both, made on the same day. Under the first, the tenent was. to remove the old buildings, prepare plans and specifications for the construction ,of'the new building, which were to be approved-by the owner, and to advertise for proposals for the construction thereof and make a contract in his own name, the. entire expense, however, to be paid by the owner, and the tenant to pay in addition to an agreed annual ground rental, five per cent per annum on the entire cost of construction. The second lease was of the building when completed for a period of twenty-one years, with a privilege of two renewals for a like period, the rental being as contemplated in the first lease. The tenant took possession under the first lease and continued in possession, without surrendering possession at the expiration of the first lease and taking possession under the second. The agreement under which the building was erected expressly provided that it was to be and to become the property of the defendant. An owner may, of course,, rent his premises and consent that the tenant may erect buildings thereon which shall become the property of the landlord, and if the latter reserves no control or supervision over the work, he will not-be responsible either for the negligent acts of the *597tenant or his contractor or the employees of the latter, either during the construction or for the safety of the plan or for damages subsequently occasioned by the collapse of the building while he is thus out of possession. Here, however, the owner reserved, to a certain extent, control with respect to the plan and the construction of the building thereunder*. If a nuisance was created thereby on his own land, he participated therein. He not only authorized the erection of the building, but he approved the plan under which it was erected, supervised its erection, approved the completed structure, and paid the bills. He cannot, therefore, escape liability, if when erected it became a public nuisance.
Third. I am of opinion, however, that the judgment must be" reversed, for an error in the charge. It is manifest that upon the ' theory of a nuisance the burden was upon the plaintiff to show that this skylight was not originally securely attached to the building, and that the inference authorized by the rules res ijosa loquitur would not establish, evenfrimafacie, that the building was a nuisance when constructed. The learned trial judge on this point apparently lost sight of the fact that the plaintiff was claiming a right to recovery upon the theory of nuisance, and charged the rule of law applicable iu an action for negligence. The jury were instructed that the fact that part of the skylight blew into the street raised the presumption that it was not properly secured, and that it was the duty of the defendant to meet this presumption by proving affirmatively that it was securely fastened. The learned counsel for the defendant duly excepted to this part of the charge, and I am of opinion that the exception was well taken. Since, as has been seen, the action cannot be maintained against the owner upon the theory of negligence, Upon which theory alone the charge of the court would have been proper, it is manifest that the jury may have been misled upon this very vital point. There was a conflict in the evidence as to the manner in which tile skylight was attached. The evidence on the part of the defendant, if believed by the jury, would have warranted them in finding that it was securely fastened, and that it gave way only owing to the extraordinary violence of a gust of wind which the exercise of reasonable care would not have required the defendant in the construction of the building to have anticipated or guarded against. The burden of proof on this point, therefore, *598became very important and the jury -should have been instructed - that it rested with -the plaintiff. , '
It follows, therefore, that the judgment and order should-be reversed and a new trial granted, with.costs to-appellanfto-abide event,.-'
Patterson, P. J., and Houghton, J., concurred.