Under the evidence given at the trial the jury would have been warranted in finding, and I think bound to find, that the obstructions placed in the street by the “defendant were by or under a license from the authorities of the village.
The defendant testified that he and a Mr. Disky, who was building adjacent to him, went together to the office of the president of the village and asked for the privilege to unload the materials in the street for the buildings they proposed to erect, and he said “ yes; it is all right; you can do so.” Mr. Disky testified to the same interview and conversation. But aside from this evidence, the fact that the defendant and said Disky did in fact deposit the materials used in erecting their said buildings in the street, and kept them there more or less through the whole summer of 1872, *574while engaged in erecting said buildings, with the full knowledge of the trustees and superintendent of said village, was sufficient evidence upon which to imply a consent on the part of the village authorities to such use of the street.
Such license relieved the defendant from a liability to indictment or other prosecution for obstructing said street, but could not be considered as authorizing him to- erect and maintain a nuisance therein.
It was not a nuisance to deposit such materials in the street, provided they were properly guarded, so that persons traveling said street were exposed to no unnecessary obstacles to the free passage thereof, or to any unreasonable peril.
Municipal corporations are bound to keep their streets in a safe condition for travel, and are liable to respond in damages to any person receiving a special injury from their neglect of this duty. Where streets in a city or village are used, as in this case, for the deposit of materials by the adjoining proprietor for building purposes, or dug up for the construction of sewers, the laying of water or gas pipes, or for other improvements by the corporation or by the adjoining owner, the corporation is bound to see to it that proper guards, or lights by night, be erected and maintained around such excavations or obstructions, so that travelers be not exposed to injury. (Storrs v. The City of Utica, 17 N. Y., 104.)
The obstructions in this case, put in the street by the defendant, were not thus guarded in the night, when Benrath received the injury for which he recovered in an action against the plaintiff. That recovery was therefore apparently proper. The license which the defendant received from the plaintiff to place such obstruction in the street, did not, as above stated, entitle him to create a nuisance in such street. The nuisance which gave a ground of action was the omission to place and maintain guards, or lights, around such deposits by night. It was the duty, I think, of the defendant to place such guards, or lights, around the obstructions by him placed in said street. He took the leave or license from the plaintiff to use the street for his private benefit, upon the implied agreement on his part that the city should be protected by him against loss or damages by reason of the obstructions to be by him so placed in said street.
*575He impliedly undertook that be would erect no nuisance in the street; that he would so guard the obstructions tobe placed by him thereon that no injury should ensue to or be suffered by any one traveling such street. This doctrine is asserted in the case of The City of Chicago v. Robbins (2 Black [U. S.], 418), which case is quite parallel with this.
In that case Bobbins was the owner of a lot on one of the public streets of the city, and excavated in the sidewalk, next to and adjoining his lot, an area of considerable length and breadth, and suffered the same to remain uncovered and unguarded so that, in the night, a person passing along said street, fell into it and was injured; for which injury he sued the city, and recovered a judgment for $15,000 and costs, which was paid by the city; and the city then sued Bobbins to recover the amount thus paid.
On the trial, evidence was given to show that the city authorities knew of the excavation of the area, and others similar, and interposed no objection to the same, though no express permission to make this one was given.
It was held, that though the city was liable to the party injured for the damages sustained by him, the corporation had a remedy over against the party that was in fault and.had so used the street as to produce the injury, and that the defendant Bobbins having had notice of the pendency of the suit, was concluded by the judgment.
In the opinion of Justice Davis, who gave the opinion of the court, he said : “ Without an express permission from the city, but under an implied license, he (the defendant) makes the area; no license can be presumed from the city to leave the area open even for a single night. The privilege extended to Bobbins was for 1ns benefit alone, and the city derived no advantage 'from it except incidentally. Bobbins impliedly agreed with the city that if he was permitted to dig the area for his own benefit, he would do it in such a manner as to save the public from danger and the city from harm.”
This case was retried and came back for review to the Supreme Court, where it is again considered and reported with the title reversed — Robbins v. The City of Chicago — in 4 Wallace, 657, where the same doctrine is reasserted.
*576This same doctrine is also asserted in Stoughton v. Porter (13 Allen, 191); Boston v. Worthington (10 Gray, 496); Lowell v. B. and L. R. R. Co. (23 Pick., 24), and Woburn v. Henshaw (101 Mass., 193), which cases, as -well as the above case of Robbins v. City of Chicago, as Judge Folgee stated in The City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y., 481), were recognized and approved in The Mayor, etc., of Troy v. The Troy and C. R. R. Co., decided in April, 1872 (Ot. of Appeals).
The case referred to by Judge Folgee is reported in the memo-randa at the end of volume 49 New York, 657.
In the case of The City of Brooklyn v. The Brooklyn R. R. Co. the case was put upon the ground of an express contract which existed in the case; and in the case of The Mayor of Troy v. Troy and C. R. R. Co. the brief report of the case states that the railroad company accepted a license to lay its track upon and through certain streets, upon condition that it should keep the same in repair.
The question whether a contract, not to commit any nuisance to the injury of the public or the municipal corporation, will be implied from the acceptance of a license to use a street for the private benefit of the party asking for and receiving such license was not distinctly decided, but I cannot see how the court could have recognized and approved the principles asserted in the case of the City of Chicago v. Robbins, and the other cases above mentioned, upon any other ground. The notice to the defendant of the commencement of the suit against the plaintiff by Bennett, was clearly sufficient to charge the defendant in this action with the duty to defend said action, and to make the judgment conclusive against him within the same cases, so far as relates to the cause of action and the amount of damages and the matters necessarily included in the adjudication. The question whether the plaintiff in that action was injured by obstructions put in the street by the defendant or some other party, was a question for the jury. ¡
The nonsuit, we think, was erroneously granted, and the motion for a new trial should be granted, with costs to abide the event.
Present — Mullin', P. J., Smith and Talcott, JJ.New trial granted, with costs to abide event.