Schrold v. City of New York

273 A.D. 872, 76 N.Y.S.2d 913, 1948 N.Y. App. Div. LEXIS 5049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1948
• Status: Published

Opinion

The plaintiff wife, a pedestrian, sued the City of New York to recover damages for personal injuries suffered as the result of a defect in a public sidewalk. The defect was occasioned by failure to repair an open drainpipe, maintained for the special benefit of respondent’s property. On appellant’s application, respondent, abutting owner, was impleaded as a defendant and a cross complaint served on it by the City of New York. Plaintiff recovered judgment against appellant. No appeal is taken from that portion of the judgment. Defendant City of New York, however, appeals from so much of the judgment as dismissed its cross complaint against respondent on the latter’s motion, made at the close of the case. Judgment modified on the law by striking out that portion which dismissed the city’s cross complaint and substituting therefor a provision granting judgment in favor of the City of New York against respondent Oceana Bealty Corporation, as prayed for in the city’s cross complaint. As thus modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to the appellant. In view of the concession made by respondent in this court, that the accident was caused by plaintiff wife falling into a hole caused by the absence of a cover over á drainpipe maintained for the special benefit of respondent’s property, appellant was entitled to recover against respondent by way of indemnity for the loss it sustained by reason of being compelled to pay the judgment in favor of plaintiff. (Satta v. City of New Torio, 272 App. Div. 782; Nicicelsburg v. City of New Torio, 263 App. Div. 625; Washington Gas Co. v. Dist. of Columbia, 161 U. S. 316.) Present — Lewis, P. J., Carswell, Johnston, Adel and Sneed, JJ.