Austin v. City of Dunkirk

Appellate Division of the Supreme Court of New York

Austin v. City of Dunkirk

140 A.D. 44, 124 N.Y.S. 248, 1910 N.Y. App. Div. LEXIS 2859

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 12, 1910

StatusPublished

Cited by2 cases

This text of 140 A.D. 44 (Austin v. City of Dunkirk) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Austin v. City of Dunkirk, 140 A.D. 44, 124 N.Y.S. 248, 1910 N.Y. App. Div. LEXIS 2859 (N.Y. Ct. App. 1910).

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Opinions

McLennan, P. J.:

As appears by the uncontradicted evidence in this case, the defendant caused or authorized to be constructed a sidewalk in one of the principal streets of the defendant city which was slippery and the surface of which was as smooth as glass. Such sidewalk was built under the direction of the defendant’s street commissioner about two years prior to the accident, and there is no question but that the sidewalk as constructed by the defendant or under its direction was slippery in the extreme. The plaintiff was passing over this walk in the darkness of an early January morning on his way to work. There had been a light fall of snow during the night preceding and the walk was covered with it.

The court charged the jury that if the accident resulted from such covering of snow, no recovery could be had ; so that the only question presented by this. appeal is as to whether or not the defendant is liable because it caused to be constructed, or authorized the construction of a sidewalk on one of its principal streets so smooth upon the surface as to render it dangerous to pedestrians passing over the same.

It seems to me clear that the construction or authorization of th<> construction of such a sidewalk was a judicial act on the part ot the defendant for which it is not liable Practically the same question was decided by this court in the ease of Ellison v. City [46]*46of Auburn (117 App. Div. 918), aud it was held that for such condition the defendant was not liable.

It seems to me that the submission of defendant’s liability to the jury under the facts in this case was error, and that a nonsuit should have been granted.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Williams, J., concurred; Spring, J., concurred in result; Kruse and Robson, JJ., dissented in an opinion by Robson, J.

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McLennan, P. J.:

As appears by the uncontradicted evidence in this case, the defendant caused or authorized to be constructed a sidewalk in one of the principal streets of the defendant city which was slippery and the surface of which was as smooth as glass. Such sidewalk was built under the direction of the defendant’s street commissioner about two years prior to the accident, and there is no question but that the sidewalk as constructed by the defendant or under its direction was slippery in the extreme. The plaintiff was passing over this walk in the darkness of an early January morning on his way to work. There had been a light fall of snow during the night preceding and the walk was covered with it.

The court charged the jury that if the accident resulted from such covering of snow, no recovery could be had ; so that the only question presented by this. appeal is as to whether or not the defendant is liable because it caused to be constructed, or authorized the construction of a sidewalk on one of its principal streets so smooth upon the surface as to render it dangerous to pedestrians passing over the same.

It seems to me clear that the construction or authorization of th<> construction of such a sidewalk was a judicial act on the part ot the defendant for which it is not liable Practically the same question was decided by this court in the ease of Ellison v. City [46]*46of Auburn (117 App. Div. 918), aud it was held that for such condition the defendant was not liable.

It seems to me that the submission of defendant’s liability to the jury under the facts in this case was error, and that a nonsuit should have been granted.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Williams, J., concurred; Spring, J., concurred in result; Kruse and Robson, JJ., dissented in an opinion by Robson, J.

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Bluebook (online)

140 A.D. 44, 124 N.Y.S. 248, 1910 N.Y. App. Div. LEXIS 2859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-city-of-dunkirk-nyappdiv-1910.

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