Opinion
February 20, 1961
In an action to recover damages for personal injuries sustained by the infant plaintiff, and by his father for loss of services and medical expenses, the City of New York, defendant and third-party plaintiff, appeals from a judgment of the Supreme Court, Kings County, entered May 6, 1960, after a jury trial, in favor of plaintiffs against said defendant and dismissing its third-party complaint against the third-party defendant Consolidated Edison Company of New York, Inc. Judgment affirmed, with costs. No opinion. Nolan, P.J., Kleinfeld, Christ and Pette, JJ., concur; Ughetta, J., concurs in the affirmance of the judgment insofar as it dismisses defendant city's third-party complaint, but dissents from the affirmance insofar as it sustains the judgment in favor of plaintiffs against said defendant and votes to reverse the judgment in this respect and to dismiss the complaint, with the following memorandum: The infant plaintiff, then a boy seven years of age, while he was running in chase of another boy, tripped and fell over a manhole cover or "pothead" located in an unpaved portion of the sidewalk. The cover was installed at the legal grade level, but protruded from 1 to 2 7/8 inches above the dirt surface all around where the sidewalk was unpaved. In going along this walk it was not necessary to use the unpaved portion. The evidence discloses no actionable defect and "In the light of the nature of the cover, its slight projection above the level of the surrounding dirt, and the availability of an adjacent paved area of the sidewalk, there was no proof of negligence" ( Kaupferstein v. Brooklyn Edison Co., 266 App. Div. 879, affd. 292 N.Y. 561; see, also, Minarsky v. City of New York, 270 App. Div. 1029).