Schmidt v. City of New York — 228 N.Y. 572

Majority

p. 572

Margaret Schmidt, an Infant, by Leonard Schmidt, Her Guardian ad Litem, Appellant, v. The City of New York et al., Respondents, Impleaded with Another.

Headnote

Schmidt v. City of New York, 179 App. Div. 667 , affirmed.

(Argued February 27, 1920;

decided March 16, 1920.)

Appeal from a judgment entered November 16, 1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff alighted from an east-bound surface car on East Eighty-sixth street, a short distance east of its intersection with Lexington avenue, and stepped upon one of the planks which constituted the surface of the street covering the excavation for a subway in course of construction at that point. The plank broke, and she fell through and was injured. The Appellate Division held that there was no evidence that the defendants had notice, either actual or constructive, of a defect in the planking and that in its absence neither the city nor the contractor can be held chargeable with negligence.

p. 573

Peter Klein for appellant.

William P. Burr, Corporation Counsel (John F. O’Brien of counsel) for city of New York, respondent.

' Frederick L. C. Keating for Bradley Contracting Company, respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Collin, McLaughlin and .Andrews, JJ. Dissenting: Hogan, Pound and Elkus, JJ.