Opinion
November 10, 1943.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: The evidence indicates that the tree in question stands in Albany Avenue, the main street of the defendant village, but outside of the State's right of way. This being the case, it was the duty of the village to remove the tree if it rendered or was reasonably likely to render public travel on Albany Avenue unsafe. (Highway Law, § 58; Village Law, § 141. See Seelye v. State of New York, 178 Misc. 278; Murphy v. Village of Wellsville, 253 App. Div. 869.) The evidence raised issues which should have been submitted to the jury and the granting of a nonsuit was error. All concur, except Harris, J., who dissents and votes for affirmance. (The judgment dismisses the complaint in an action to recover property damage to plaintiffs' truck and trailer, alleged to have been caused by reason of the negligent condition of the highway.)