Majority
p. 813Abraham Gicht, as Administrator, etc., of Morris Gicht, an Infant under the Age of Fourteen Years, Deceased, Appellant, v. The City of New York, a Municipal Corporation, Respondent, Impleaded with Another.
Headnote
Municipal corporations — liability in tort — action for injuries suffered — accident caused by broken manhole cover — notice to policeman in morning of day of accident sufficient to take case to jury on question of actual notice.Appeal from so much of a judgment of the Supreme Court, entered in the New York county clerk's office on March 20, 1926, upon the verdict of a jury rendered by direction of the court after a trial at Trial Term, as directed judgment in favor of the defendant, The City of New York.
The proof by a witness that he notified a municipal policeman in uniform of the breaking of the manhole cover in the morning of the day of the accident and pointed out the danger in thé highway and that the officer promised to “ attend to it ” was sufficient to take the case to the jury on the question of actual notice to the city of the defect. The judgment so far as appealed from should, therefore, be reversed and a new trial ordered as to the defendant, The City of New York, with costs to the appellant to abide the event. Present — >
p. 814
Dowling, P. J., Merrell, McAvoy, Martin and O’Malley, JJ.; Dowling, P. J., and Martin, J., dissent and vote for affirmance. Judgment so far as appealed from reversed, and new trial ordered as to the defendant, The City of New York, with costs to the appellant to abide the event.