On Petition for a Rehearing.
Franklin, C.Appellant urges two reasons for a rehear*61ing. The first is that in the opinion deciding the case, this court places the affirmance of the judgment of the lower court at general term, reversing the judgment' at special term, upon a different ground from the one upon which the court at general term reversed the judgment at special term. '
Filed May 29, 1884.We do not understand that the judgment, or the grounds upon which it is based, of the lower court in general term, become the law of the case so as to be binding upon this court in ah appeal to this court from such judgment; if so, no such appeal would be provided for.
The second reason is that this court erred in holding that a general charge in the complaint of negligence in the defendant, without averring notice of the obstruction in the street, or alleging facts from which notice might be inferred, was insufficient; that the lower court in special term erred in overruling the demurrer to the complaint, and that there was no error in the reversal of the judgment at the general term.
For aught that-appears in the complaint, the obstruction complained of may not have-been in the street five minutes before the accident. And before the city can be held liable for not removing the obstruction from- the street, it must be shown by averments in the complaint, that it had notice of the existence of the obstruction in the street, and, that a reasonable time had elapsed, before the accident, for the removal of the same, or that it had remained there so long as to justify the presumption of such notice. This rule we think is based upon authority, and. is in accordance with justice and common reason.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled, at appellant’s costs.