Monahan v. Empire City Subway Co.

Appellate Terms of the Supreme Court of New York

Monahan v. Empire City Subway Co.

52 Misc. 566, 102 N.Y.S. 774

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 15, 1907

StatusPublished

This text of 52 Misc. 566 (Monahan v. Empire City Subway Co.) 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

Monahan v. Empire City Subway Co., 52 Misc. 566, 102 N.Y.S. 774 (N.Y. Ct. App. 1907).

Pincite

Opinion

MacLean, J.

The plaintiff testified that, at four o’clock in the morning of December 29, 1905, he was walking south on the easterly side of Hudson street and, while crossing Christopher street, he felt the street give way under his feet and he fell and was injured. Assuming permission to [567]*567the defendant to interfere with the street at that point for the purpose of building an electrical subway and that it had let out the work to an independent contractor, its duty of keeping the highway in a reasonably safe condition for travel during the progress of the work remained, notwithstanding the presence of an independent contractor. Schiverea v. Brooklyn Heights R. R. Co., 89 App. Div. 340, 344. Violation of that duty by this defendant, however, the plaintiff must establish and that he has failed to do; for it is uncontradicted that the trench of the defendant at that point was back-filled, rammed, concreted and hand paved and the work completed upwards of ten days prior to the accident to the plaintiff, and that excavations were made around the same place by others the day the work of the defendant was completed. Connection of the defendant therewith and with the injuries to the plaintiff may not be said from the evidence to be established. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Amend, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Free access — add to your briefcase to read the full text and ask questions with AI

MacLean, J.

The plaintiff testified that, at four o’clock in the morning of December 29, 1905, he was walking south on the easterly side of Hudson street and, while crossing Christopher street, he felt the street give way under his feet and he fell and was injured. Assuming permission to [567]*567the defendant to interfere with the street at that point for the purpose of building an electrical subway and that it had let out the work to an independent contractor, its duty of keeping the highway in a reasonably safe condition for travel during the progress of the work remained, notwithstanding the presence of an independent contractor. Schiverea v. Brooklyn Heights R. R. Co., 89 App. Div. 340, 344. Violation of that duty by this defendant, however, the plaintiff must establish and that he has failed to do; for it is uncontradicted that the trench of the defendant at that point was back-filled, rammed, concreted and hand paved and the work completed upwards of ten days prior to the accident to the plaintiff, and that excavations were made around the same place by others the day the work of the defendant was completed. Connection of the defendant therewith and with the injuries to the plaintiff may not be said from the evidence to be established. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Amend, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cite This Page — Counsel Stack

Bluebook (online)

52 Misc. 566, 102 N.Y.S. 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monahan-v-empire-city-subway-co-nyappterm-1907.

Opinion

Related

Cite This Page — Counsel Stack