Duffy v. City of New York — 128 A.D. 837

Majority

p. 837

Margaret Duffy, Appellant, v. The City of New York, Respondent.

Second Department,

November 27, 1908.

Headnote

Municipal corporations — injury on icy sidewalk —nuisance — defective leader.

Where in an action to recover against a city for injuries received by a fall on an icy sidewalk it appears that a leader on an adjoining house had been broken for more than a year and cast water upon the sidewalk which alternately froze and thawed throughout the winter, it is error to dismiss the complaint, for the condition was a nuisance which the city was required to abate.

Appeal by the plaintiff, Margaret Duffy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of March, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Edward A. Scott [Bernhard Raymond with him on the brief], for the appellant.

James D. Bell [ James W. Covert and F. K. Pendleton with him on the brief], for the respondent.

The plaintiff slipped on ice on the sidewalk and broke her leg. The evidence showed that there was a broken leader on a house which cast water on the sidewalk every time there was a rain or thaw, and that the water froze there, and that there was an alternation of freezing and thawing there all the time in the winter, and that that had been the condition there for more than a year. The nonsuit was error. Such a continuous condition was a nuisance to be abated by the city'.

The judgment should be reversed.

Woodward, Hooker, Gaynor, Rich and Miller, JJ., concurred.

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