McCutcheon v. National City Bank

265 A.D. 878, 38 N.Y.S.2d 3, 1942 N.Y. App. Div. LEXIS 6295

Opinion

Plaintiff Mattie McCutcheon was caused to fall by the raising of the edge of a sidewalk where it adjoined a strip of metal frame at the edge of a vault cover in front of premises in possession and control of the appellant. There was no defect in the vault cover or the metal strip which caused the accident. The accident was caused by virtue of a defective or sloping sidewalk. There was no obligation on the part of the appellant to maintain the sidewalk beyond the line of this vault cover, or any part thereof. (Mullins v. Siegel-Cooper Co., 183 N. Y. 129; City of Rochester v. Campbell, 123 N. Y. 405; Dedrick v. Schinasi, 179 App. Div. 763.) Lazansky, P. J., Hagarty and Adel, JJ., concur; Carswell and Close, JJ., concur for reversal on the ground that the charge of the court erroneously invoked an inapplicable statute as a possible basis for a finding of liability. They dissent, however, as to dismissal of the complaint and vote for a new trial on the authority of Schild v. C. P., N. & E. R. R. R. Co. (133 N. Y. 446) and Kolsch v. Huettner, Inc. (250 App. Div. 202) and eases cited therein.