Dempsey v. City of New York — 141 A.D. 567

Majority

p. 567

Julia A. Dempsey, Appellant, v. The City of New York, Respondent.

First Department,

December 30, 1910.

Headnote

Municipal corporation — negligence — defect in sidewalk — erroneous dismissal of complaint.

Where in an action against a city for personal injuries it appears that plaintiff was injured on a dark night by stepping into a hole in the middle of a sidewalk left by the removal of a flagstone; that the hole, -which was two feet by four feet and from three inches to six inches deep, had existed for eleven months, and that similar accidents at the same place were of daily occurrence, a dismissal of the complaint is error.

Appeal by the plaintiff, Julia A. Dempsey, from a, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of February, 1909, upon the dismissal of the complaint by direction of the

p. 568

court at. the close of plaintiff’s case, on a trial at the New York ' ■ Trial Term, in an action for personal-injuries alleged to have been caused by the defendant’s negligence.

G. W. Hopkins, for'the appellant.

Theodore Connoly, for the respondent.

A piece of flagstone about two by four feet in dimensions was removed'from the middle of the sidewalk in front of premises No'. 690 East One Hundred and Forty-third street, and a hole was formed varying from three inches on the sides to six inches deep in the middle. That hole had remained there for eleven months, when, on a dark night, the plaintiff stepped into it and received injuries from .the fall thus caused, for which this action is brought. Unless municipalities are to be absolutely immune from- damages caused by defective streets and ¡sidewalks, the questions in this .case were for the jury.

It seems.to me that, as a matter of fact, the negligence of the defendant is not even debatablebut, if- it were, the plaintiff supplied the necessary proof by showing that similar accidents were of daily occurrence. The learned trial court dismissed the complaint on the authority of Gastel v. City of New York ( 194 N. Y. 15 ), but, so far from supporting the nonsuit, the opinion of Judge His-cooK- in that case shows that this case should have been submitted to the jury. , -

■ The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Láugiilin and Dowling, JJ., concurred. '

Judgment reversed, new trial ordered, costs to appellant to abide event. ■ •

Cases cited

Gastel v. City of New York 194 N. Y. 15 N.Y. 1909-01-05 p. 568