Forte v. City of Albany

253 A.D. 68, 300 N.Y.S. 1160, 1937 N.Y. App. Div. LEXIS 5111

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1937
• Status: Published

Opinions

Heffernan, J.

Plaintiffs have appealed from judgments and orders of nonsuit of the Albany Trial Term of the Supreme Court.

The facts are stated in the dissenting opinion of Presiding Justice PIill.

We are convinced that plaintiffs failed to establish actionable negligence upon the part of the defendants. The New York Power and Light Corporation had a contract with the city of Albany for lighting the premises. That concern removed the wires from underneath the bridge during the construction. The removal of these wires was done on behalf of the city and not on behalf of the defendant railroad company. That defendant had nothing to do with a public street. In fact the defendant railroad company never maintained any lighting system under the bridge. On the trial plaintiffs’ counsel contended that the ramp was the proximate cause of the accident. Not only that but plaintiffs’ counsel stated that he had no complaint about the lighting of the street. The railroad company and its contractor defendant Ballard, Inc., had no authority to interfere with the fighting system. No claim was made by plaintiffs on the trial that the defendant railroad company was negligent because of its failure to remove the steel column supporting the old bridge with which the automobile collided. There is no proof to show that the column should have been removed. The reconstruction of the bridge had not been completed. Obviously train service had to be maintained during the period of construction.

The judgments and orders appealed from should be affirmed, with one bill of costs.

McNamee and Crapser, JJ., concur; Hill, P. J., dissents, with an opinion in which Bliss, J., concurs, except as to defendants M. F. Bollard and M. F. Bollard, Jr., Inc., and as to said defendants vote to affirm.