The complaint alleges the “wrongful and illegal” construction of the coal hole in the sidewalk by the owner of the premises; that the defendant, as lessee, maintained the nuisance; and that from the nuisance, so maintained, the plaintiff suffered injury. From these facts, if supported by proof, the necessary legal conclusion was a judgment for the plaintiff. Clifford v. Dam, 81 N. Y. 52; Jennings v. Van Schaick, 13 Daly, 438. The existence of the obstruction in the highway, defendant’s responsibility for it, and plaintiff’s injury by it were established by uncontradicted evidence, and yet the complaint was dismissed, because the defendant’s negligence was not apparent. In such a cause of action, negligence is not an element Clifford v. Dam, supra. The prevailing opinion upholds the judgment against the plaintiff on a different ground from that upon which the learned trial judge dismissed the complaint,—on the ground, namely, of a permit from the city to construct the coal hole. But this contention is untenable for two reasons: First, license to construct the coal hole was an affirmative defense, not available unless pleaded (Clifford v. Dam, *183supra), and there is no hint in the answer of any such permission; secondly, there is not a suggestion in the evidence of a license to construct the coal hole. It is said, however, that an inference of such license may be deduced by the court from the fact of the existence of the obstruction for “upwards of a year”; and the authority adduced in support of the proposition is Babbage v. Powers, 130 N. Y. 281, 39 N. E. 132. In Babbage v. Powers, a license was pleaded, and the court held that it was proved by the fact that the coal hole “had been constructed with knowledge of the city officials, and had been used for nine years.” This may be sufficient evidence of acquiescence, but does not involve the implication that the mere existence of the obstruction for “upwards of a year,” without another circumstance, is such proof of a license as requires that the case be taken from the jury. The plaintiff is defeated upon a defense neither pleaded nor proved. Consistently with familiar principles and due submission to the authority of the court of appeals, I cannot concur in the conclusion of the majority. The judgment should be reversed.