Suchovalsky v. City of New York — 126 N.Y.S. 699

Majority

p. 699

SUCHOVALSKY v. CITY OF NEW YORK.

(Supreme Court, Appellate Term.

January 5, 1911.)

Headnote

Municipal Corporations (§ 788*)—Streets—Defects—Negligence.

Where a city did not have actual knowledge of a defect in a street made by an excavation, and it had not existed long enough to impute knowledge thereof to it, the city was not liable for injuries caused by falling into the excavation.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1641-1643; Dec. Dig. § 788.*]

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Abraham Suchova'sky against the City of New York. From a judgment for plaintiff, defendant appeals.

Reversed, and new trial ordered.

Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.

Archibald R. Watson, Corp. Counsel (Theodore Connoly and Loyal Leale, of counsel), for appellant.

Goldstein & Goldstein, for respondent.

This is an action to recover damages for personal injuries sustained by the plaintiff in falling into an excavation in one of the streets of the city of New York. As there was no evidence that the defendant had actual knowledge of the excavation, or that it had existed for such length of time as to justify the imputation of knowledge, there was no sufficient support for the claim that the city had been negligent in failing properly to guard the excavation. McDonald v. Degnon-McLean Contracting Co., 124 App. Div. 824 , 827, 828, 109 N. Y. Supp. 519 ; Buckley v. City of New York, 135 App. Div. 512 , 514, 515, 120 N. Y. Supp. 423 .

The judgment, consequently, was not sustained by the evidence, and should be reversed,- and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.