It was held in Pack v. The Mayor (8 N. Y., 222) that a city corporation was not liable for injuries to third persons, occasioned by the negligence of workmen engaged in grading a street, under the direction of a person having a contract with the corporation for the *304performance of the work, at a fixed and stipulated price therefor. The case here before the court is less favorable to the plaintiff’s right of action on the facts than was the one cited. In the latter case the work was being done under an express contract with the corporation for its performance. In the case in hand, there was no contract with the corporation for the performance of the work, by the party having it in charge. The authority from the corporation was here, but permissive, viewed in the strongest possible light in that regard. Those engaged in the work were in no respect the agents or servants of the corporation. According to the decision in the case cited, a recovery for an injury growing out of negligence, could be had only against the person actually guilty of the misfeasance or non-feasance, or against one to whom he stood in the relation of servant or agent. The same rule of liability, or rather non-liability, was again enunciated in Kelly v. The Mayor (11 N. Y., 432); and again in McCafferty v. S. D. and P. M. R. R. Co., (61 N. Y., 178.) In this case in hand, the injury is alleged to have occurred by reason of the omission of the workmen to make a gradual and proper descent from the higher to the lower grade of the walk; They left the descent abrupt, and as is claimed, in an unguarded and dangerous condition. The alleged ground of negligence was, therefore, the non-feasance of those employed in the work. The rule of law above alluded to applies to cases of non-feasance and misfeasance alike. The learned judge was right in his application of the rule.
But it is now urged on this appeal that the injury was not occasioned by any negligence in doing the work, but by reason of leaving the abrupt descent unguarded, and it is insisted that there was a direct and independent duty devolving on the defendants to-keep the streets and sidewalks within the corporate limits in safe condition for travel, and that they were liable to respond in damages to all persons, who, without fault on their part, should receive injury from neglect of such duty. (Wilson v. City of Watertown, 10 N. Y. S. C. [3 Hun], 508; Deyoe v. Village of Saratoga Springs, 3 N. Y. Sup. Ct. R. [T. & C.], 504; Clemence v. City of Auburn, 11 N. Y., S. C. [4 Hun], 386; Storrs v. The City of Utica, 17 N. Y., 104; Todd v. City of Troy, 61 N. Y., 506.) But the corporation will not be held liable without notice of the defect in the *305highway causing the injury. It was said in Wilson v. City of Watertown (supra), that a municipal corporation will not be held liable for an injury caused by a nuisance in a street, created without rts authority or sanction, of the existence of which it had no notice. So in Todd v. City of Troy (supra), Judge Earl, speaking for the court, said that it was the duty of the municipal authorities to exercise an active diligence over the streets, to see that they were kept in a reasonably safe condition for public travel. But, he added, that before the city could be made liable in any case, it must be shown that it had notice of the bad condition of the street, and further as follows : “ This notice can be either, express or constructive. By constructive notice is meant such notice as the law imputes from the circumstances of the case. * * * After a street has' been out of repair so that the defect has become known and notorious to those traveling the street, and there has been full opportunity for the municipality through its agents charged with that duty, to learn oi its existence and repair it, the law imputes to it notice, and charges it with negligence.” (Page 509.) Now, there is no proof in this case of actual notice to the municipality, nor is there any sufficient evidence of constructive notice, as such notice is above explained by Judge Earl. The work of grading had been progressing but a very short time. It does not appear that the particular defect complained of had existed for any considerable period before the acci dent. There is no evidence whatever that the officers of the municipality had reasonable ground, or any ground whatever, to anticipate the defect, or any opportunity to look to it and guard or remedy it after it existed and before the injury. Then, there was no actual notice to the municipality of the defect, nor was such a state of facts proved as would authorize a jury to find that it had constructive notice of its existence.
It is quite doubtful whether this question is raised by any exception in the case ; but if well raised, there was not sufficient proof submitted to make it available as ground of error. We are of the opinion that the nonsuit and dismissal of the complaint was properly directed.
Learned, P. J., and Boardman, J., concurred.Judgment affirmed with costs.