Hyperlawhypertext legal database Kaveny v. City of Troy 36 N.Y. St. Rep. 703

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Kaveny v. City of Troy

36 N.Y. St. Rep. 703 Court N.Y. Gen. Term Decision date 1891-02-18 English

Delivered by Landon, J.

Contents

Majority

p. 703
Sabrina Kaveny, App’lt, v. The City of Troy, Resp’t.
(Supreme Court, General Term, Third Department,
Filed February 18, 1891.)

Headnote

1. Nonsuit—When will not be distubbed.
Where the plaintiff’s evidence upon a second trial is substantially the same as that upon the first, and the evidence upon the first has been held by the court of appeals insufficient for a recovery, a judgment of nonsuit on the second trial must be affirmed.
.2. Negligence—Ice and snow.
The mere fact that a slight ridge was formed by two flagstones, upon which the water from adjoining premises dripped and formed a ridge of ice, is not sufficient to render the municipality liable, where it does not appear that plaintiff fell upon these flagstones.
Appeal from a judgment of nonsuit directed by the court at the close of the whole testimony upon the trial at the Rensselaer •circuit.
James Lansing, for app’lt; W. J. Roche, for resp’t

The appellant claims that she has made a better ■case than that upon which the court of appeals ¡held that she was not entitled to recover. 108 N. Y., 571 ; 14 N. Y. State Rep., 18. Some evidence was given tending to show that at a point in the side walk near where she fell two small flag-stones lay side by •■side, an inner and an outer one, the first declining slightly in grade from the middle of the walk to the piazza of the hotel, and the second from the middle of the walk to the curb stone, thus forming a ridge in the walk; that the water dripped from the piazza Toof upon these stones, and froze, thus adding a ridge of ice to the ridge formed by the flag-stones. The ridge formed by the •flag-stones, if any, was too slight to be termed a substantial defect in the walk, and the real difficulty was in the snow and ice, as to which the testimony is the same now as upon the former appeal. Besides it does not appear that the appellant fell upon these two flag-stones.

Judgment affirmed, with costs.

Leabned, P. J., concurs; Mayham, J., takes no part