Vandeskie v. City of New York

Full title: Mary Vandeskie, Respondent, v. The City of New York, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 1, 1903

89 App. Div. 625 (N.Y. App. Div. 1903)

Opinion

December, 1903.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

JENKS, J.:

The action is for negligence. Plaintiff complains of injuries consequent to her slipping into a hole or depression in the street. The defendant requested the court to charge the following, which was refused under exception: "I ask your honor to charge that there is no evidence that the hole into which the plaintiff claims to have fallen was dangerous or such holes ( sic) would have required any affirmative action on the part of the city." I fail to find any evidence to warrant any finding as to the character or dimensions of the hole. For aught that appears, the hole, if it existed, may have been similar to that considered in Hamilton v. City of Buffalo ( 173 N.Y. 72), or even a lesser defect. I take it that it was essential to a recovery that there should have been some evidence to free the case from the rule laid down in Hamilton's Case ( supra). (See, too, Schall v. City of New York, 88 App. Div. 64; 84 N Y Supp. 737). The judgment and orders should be reversed, and a new trial ordered, costs to abide the event. Bartlett, Hirschberg and Hooker, JJ., concurred.