Knoth v. Meltzer — 52 N.Y. St. Rep. 857

Majority

p. 857

Henry Knoth, App'lt, v. Elizabeth Meltzer et al., Resp'ts.

(City Court of Brooklyn, General Term,

Filed May 22, 1893.)

Headnote

Negligence—Icy sidewalk.

Plaintiff was injured by falling on ice upon the sidewalk in front of defendants’ brewery at a point where there was a driveway. There was no ice upon other parts of the sidewalk, and it could be inferred that water flowed off defendants’ land on the sidewalk and there became ice. The case did not show whether such water came from melting snow and ran down the natural grade, or whether it flowed from pipes and the natural grade had been changed. Held, that the complaint was properly dismissed.

Appeal from judgment dismissing complaint.

M. L. Towns, for app'lt; Jerry A. Wernberg, for resp'ts.

The plaintiff brought this action and sought to recover damages for personal injuries from a fall upon ice on the sidewalk in front of a brewery of the defendants. Testimony was admitted on the trial tending to show that the plaintiff fell where there was a driveway, and it was also proven that the remaining portion of the sidewalk was free from ice. At the close ,of the case for plaintiff, a motion was granted to dismiss the complaint.

After a careful examination of the record, we are unable to distinguish this case from Moore v. Gadsden, 93 N. Y., 12 , and are of ■opinion that the nonsuit was properly granted. The ' learned counsel for the appellant contends that the defendants interfered with the sidewalk in violation of certain ordinances of the city which are not printed in the case, and, therefore, are not before us for review. It may be fairly inferred that water flowed off the land of defendants on the sidewalk and there became icd. Whether such water resulted from melting snow and ran down the natural grade of the land, or whether the water flowed from pipes, and the natural grade of defendants’ premises had been disturbed, does not appear in the case. The defendants had the right to drive over the sidewalk, as it was necessary in the use of their premises.

Judgment affirmed, with costs.

Yan Wyck, J., concurs.