Foye v. City of New York

Appellate Terms of the Supreme Court of New York

Foye v. City of New York

133 Misc. 407

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1928

StatusPublished

This text of 133 Misc. 407 (Foye v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foye v. City of New York, 133 Misc. 407 (N.Y. Ct. App. 1928).

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Opinion

Per Curiam.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant, and verdict reinstated.

The pleadings admitted that the street upon which the accident happened was a public highway and that the defendant owed the duty of keeping it in a reasonably safe condition. The proof j ustified the finding of the jury that it was not so maintained. The fact that the sidewalk, at the place of the accident, was not paved is immaterial. The city’s liability was to keep the sidewalk reasonably safe whether it is flagged, planked, or made of ashes or dirt. (Deufel v. Long Island City, 19 App. Div. 620; Lehn v. City of Brooklyn, 19 N. Y. Supp. 668; affd., 143 N. Y. 674; Higgins v. Village of Glens Falls, 11 N. Y. Supp. 289; 57 Hun, 594; affd., 124 N. Y. 666; Stapleton v. City of Newburgh, 9 App. Div. 39; Schafer v. Mayor, etc., of New York, 154 N. Y. 466; Murphy v. City of Indianapolis, 83 Ind. 76; Hillyer v. Winsted, 77 Conn. 304; City of Atchison v. Mayhood, 69 Kan. 672; Benton v. City of St. Louis, 217 Mo. 687.) The case of Quinn v. City of New York (145 App. Div. 195), upon which the trial court relied, is not in conflict with the decisions mentioned. Whether the plaintiff’s wife was negligent was a question of fact and not of law. (Bullock v. Mayor, etc., of New York, 99 N. Y. 654; Pomfrey v. Village of Saratoga Springs, 104 id. 459; Weed v. Village of Ballston Spa, 76 id. 329.)

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Per Curiam.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant, and verdict reinstated.

The pleadings admitted that the street upon which the accident happened was a public highway and that the defendant owed the duty of keeping it in a reasonably safe condition. The proof j ustified the finding of the jury that it was not so maintained. The fact that the sidewalk, at the place of the accident, was not paved is immaterial. The city’s liability was to keep the sidewalk reasonably safe whether it is flagged, planked, or made of ashes or dirt. (Deufel v. Long Island City, 19 App. Div. 620; Lehn v. City of Brooklyn, 19 N. Y. Supp. 668; affd., 143 N. Y. 674; Higgins v. Village of Glens Falls, 11 N. Y. Supp. 289; 57 Hun, 594; affd., 124 N. Y. 666; Stapleton v. City of Newburgh, 9 App. Div. 39; Schafer v. Mayor, etc., of New York, 154 N. Y. 466; Murphy v. City of Indianapolis, 83 Ind. 76; Hillyer v. Winsted, 77 Conn. 304; City of Atchison v. Mayhood, 69 Kan. 672; Benton v. City of St. Louis, 217 Mo. 687.) The case of Quinn v. City of New York (145 App. Div. 195), upon which the trial court relied, is not in conflict with the decisions mentioned. Whether the plaintiff’s wife was negligent was a question of fact and not of law. (Bullock v. Mayor, etc., of New York, 99 N. Y. 654; Pomfrey v. Village of Saratoga Springs, 104 id. 459; Weed v. Village of Ballston Spa, 76 id. 329.)

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133 Misc. 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foye-v-city-of-new-york-nyappterm-1928.

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