Larusso v. City of New York

257 A.D. 997, 13 N.Y.S.2d 639, 1939 N.Y. App. Div. LEXIS 8864

Opinion

Plaintiff’s intestate sustained bums at a bonfire located on a sidewalk, resulting in Ms death. Judgment reversed on the law, with costs, and complaint dismissed, with costs. The fire in question was not shown to have been in existence for more than ten to seventeen minutes. Although the city was under the obligation to remove tMs fire from the sidewalk, in accordance with its duty of maintenance of the sidewalk free from obstructions, dangers and defects, the period during wMch the fire continued was insufficient to predicate liability on the theory that the city had notice or knowledge thereof. The existence of previous fires and their frequent occurrence might have the effect of requiring the city to exercise greater vigilance than would be normally required, but the city was not an insurer and was not required to station an employee at the place permanently and continuously. Hagarty, Taylor and Close, JJ., concur; Lazansky, P. J., and Carswell, J., concur as to reversal of judgment, but dissent as to dismissal of the complaint and vote to grant a new trial in order to give plaintiff an opportumty to develop her evidence with more clarity.