Opinion
Argued February 27, 1964
Decided March 26, 1964
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, PETER A. QUINN, J.
John Nielsen and Francis P. Cunnion for appellant.
Solomon Boneparth for respondent.
Judgment affirmed, with costs, on the following memorandum: The trial court instructed the jury that violation by appellant of the New York City Health Code (art. 153, § 153.19) would be "some evidence of negligence". This was error ( City of Rochester v. Campbell, 123 N.Y. 405; see Steitz v. City of Beacon, 295 N.Y. 51, 56) since it could be taken by the jury to mean that if the plank were on the sidewalk appellant could be held negligent regardless of who put the obstruction there. However, on this record the jury could, and almost certainly did, find that the plank had been negligently dropped onto the sidewalk by appellant's contractor. We conclude, therefore, that the reference to the Health Code was not reversible error.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE and SCILEPPI. Taking no part: Judge BERGAN.