McCormack v. City of Brooklyn

The plaintiff alleges in his complaint, and he and his witnesses testify, that defendant suffered a loose flagstone to remain upon the flagged part of the sidewalk, and that plaintiff, while walking along such flagged portion, stumbled over this loose flag resting thereupon. The testimony of defendant’s witnesses was to the effect that no such loose flagstone rested upon or -projected over the flagged part of the walk. If this latter version be true, then the former cannot be; and we think the court properly instructed the jury that, unless the loose flag rested upon or projected over the flagged part of the walk, the plaintiff cannot recover. We find no ruling -to which an exception was taken which was harmful to plaintiff. The judgment and order must be affirmed, with costs.