McCann v. Thilemann — 72 N.Y.S. 1117

Majority

p. 1117

McCANN, Respondent, v. THILEMANN et al., Appellants.

(City Court of New York,

General Term.

May, 1901.)

Headnote

Action by Peter Mc-Cann against Frfderiek Thilemann, Jr., and others.

Weeks, Battle & Marshall, for appellants. Robert H. Ernest (Percy W. Crane and J. Aspinwall Hodge, Jr., of counsel), for respondent.

This case presents a very close question upon the law,—in short, is at the border line. But, while we might possibly disagree with the learned court below in declining to charge all that the appellants requested, yet, upon the whole, we determine that fatal error was not committed by refusal. The case was carefully and impartially presented for the jury’s consideration of the facts; and the verdict, in view of the long and continued use of the path by plaintiff and the public, having held the defendant to have been negligent, will be permitted to stand. Beck v. Carter, 68 N. Y. 293 , 23 Am. Rep. 175 . Judgment should be affirmed, with costs. Judgment affirmed, with costs.

CONLAN, J., concurs.