Opinion
Argued May 23, 1950
Decided July 11, 1950
Appeal from the Supreme Court, Appellate Division, Second Department, SWEZEY, J.
Ralph Stout for appellant.
Walter L. Glenney for respondent.
In an action for personal injuries, sustained when she stepped into a four-foot hole in the sidewalk, plaintiff recovered a judgment against respondent. The Appellate Division, while affirming the findings of fact implicit in the jury's verdict, reversed the judgment and dismissed the complaint on the law on two grounds: (1) it ruled that respondent could not be held liable in the light of the acceptance by the City of New York of the work after its completion, citing Coleman v. Guidone Son, Inc. ( 192 App. Div. 120). In that case, however, it was pointed out that if a defective board had been installed the applicable rule might be different. Such the jury was entitled to find was the situation here with respect to the defective concrete. (2) The lower court also held that, since the contract between respondent and the city had expired before the accident, respondent had no supervisory power nor control and was no longer liable under the applicable general rule at common law, citing cases relating to the maintenance or the continuance of a nuisance or defective condition on private property rather than the creation thereof in a public highway. The only case cited which relates to the creation of a dangerous condition is Mayor of City of Albany v. Cunliff ( 2 N.Y. 165) the decision in which, however, was based upon the invalidity of a statute.
We are of the opinion that the lower court failed to distinguish between an affirmative act of negligence in the very creation of a nuisance or a dangerous condition in a public highway and a mere failure properly to maintain. The instant case is an exception to the general rule ( Boylhart v. Di Marco Reimann, Inc., 270 N.Y. 217, 221; Benjamin v. Trebatch, 271 N.Y. 513; Junkermann v. Tilyou Realty Co., 213 N.Y. 404, 409; Kilmer v. White, 254 N.Y. 64, 69; Irvine v. Wood, 51 N.Y. 224, 228; Charlock v. Freel, 125 N.Y. 357; Wilks v. New York Tel. Co., 243 N.Y. 351; Wilks v. Federal Tel. Tel. Co., 248 N.Y. 618 [same case]; Wenzel v. Duncan, 261 App. Div. 100 3).
The judgment of the Appellate Division should be reversed and that of Trial Term affirmed, with costs in this court and in the Appellate Division.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Judgment reversed, etc.