Hedenberg v. Manhattan Railway Co.

91 N.Y.S. 68

Opinion

BISCHOFF, J.

The plaintiff was properly nonsuited. His injury resulted from his stepping upon a nail in a plank lying beneath the defendant’s station and upon the sidewalk, and, assuming that the plank was placed there by the defendant in the course of the. construction of some steps, as the plaintiff contends, the liability of the defendant would depend upon proof that this plank was permitted to remain upon the sidewalk beyond a reasonable time. For all that appears, the condition had existed but a moment, yet for a reasonable use of the sidewalk the defendant incurred no liability. O’Reilly v. L. I. R. Co., 4 App. Div. 139,141, 38 N. Y. Supp. 779; s. c. 15 App. Div. 79, 44 N. Y. Supp. 264.

The judgment erroneously directs a dismissal upon the merits, however, and, so far, must be modified.

Judgment modified by striking out direction for a dismissal upon the merits, and, as modified, affirmed, .without costs. All concur.