Mackey v. City of New York — 121 A.D. 473

Majority

p. 473

John J. Mackey, Respondent, v. The City of New York, Appellant.

Second Department,

October 4, 1907.

Headnote

Negligence — evidence — injury on sidewalk — repair of defect after accident..

In an action against a municipality for injuries received by a defective sidewalk, it is error to admit evidence that the defendant repaired the defect after the accident.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of Queens on the 21st. day of-January, 1907, upon the verdict of a jury for-$500, and also from

p. 474

an order entered in said clerk’s office on, the 26th day of January, 1907, denying the defendant’s motion for a new trial .made upon the. minutes.

Theodore Connoly [Royal E. T. Riggs and William R. Ellison with him on the brief], for the appellant.

George F. Hickey [William F. Stewart with him on the brief],, for the respondent.

This is a sidewalk case. The .'defect complained of was a depress sion caused by the construction, of a curb about ten or twelve inches from the old curb without sufficiently filling in the intervening space. The plaintiff was permitted to prove, over the specific objection that the evidence was irrelevant, that this space was filled in shortly after the accident. Such evidence in this class of cases has too'frequently been condemned to require any discussion-Or citation of - authorities now. As the judgment must be reversed for said error it would be profitless to discuss the merits at this time:

I advise that the judgment and order be reversed.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.