Opinion
April, 1907.
Charles A. Gardiner (Alfred E. Mudge, of counsel), for appellant.
Henry Waldman, for respondent.
The judgment should be reversed on the authority of Scholtz v. The Interborough R.T. Co., 48 Misc. 619; Idel v. Mitchell, 158 N.Y. 134, and Benson v. Manhattan Ry. Co., 31 Misc. 723. The case does not come within the authority of Cooley v. Trustees of the N.Y. B. Bridge, 46 A.D. 243, as in that case it appeared affirmatively that "the occasion of the fall was a pile of dirt, composed of earth, banana peelings, cigar stumps, etc., situated on the fifth or sixth step from the bottom of the stairs, and about three inches in depth and eighteen inches long," and it also appeared affirmatively that defendant's servant had previous to the accident swept the dirt from step to step, an inference being deducible therefrom that the said servant was responsible for said pile of dirt which caused the accident; while in the case at bar the evidence shows that, although there was much dirt upon the stairs, the plaintiff fell on a piece of tobacco; and there is nothing to indicate that the said tobacco had been there a sufficient length of time to impute notice to defendant.
Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Present: GILDERSLEEVE, GIEGERICH and ERLANGER, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.