Corson v. City of New York

113 A.D. 679, 99 N.Y.S. 921, 1906 N.Y. App. Div. LEXIS 1511

Opinions

Miller, J.:

The questions involved in this case were fully considered upon the former appeal (78 App. Div. 481) and we desire to add. nothing to what was then said by the court, speaking through Mr. Justice Willard Bartlett, except that the case of Mullins v. Siegel-Cooper Co. (183 N. Y. 129) is authority for the correctness of the conclusion there reached that proof of numerous prior accidents caused by the defect complained of would have required the submission of the case to the jury. The criticism then made by this court upon the indefinite character of the proof of such former accidents has now been met. It was,, therefore, error to dismiss the complaint, and the judgment should be reversed, with costs, and a judgment ordered for,the plaintiff upon the special verdict, in accordance with section 1187 of the Code of Civil Procedure.

Jenks, J., concurred in result; Hooker and Rich, JJ., concurred; Gaynor, J., concurred in a separate memorandum.