Schwartz v. City of New York

Appellate Division of the Supreme Court of New York

Schwartz v. City of New York

18 A.D.2d 1062, 239 N.Y.S.2d 142, 1963 N.Y. App. Div. LEXIS 3918

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 1963

StatusPublished

Cited by1 cases

This text of 18 A.D.2d 1062 (Schwartz v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwartz v. City of New York, 18 A.D.2d 1062, 239 N.Y.S.2d 142, 1963 N.Y. App. Div. LEXIS 3918 (N.Y. Ct. App. 1963).

Pincite

Opinion

Determination of Appellate Term which modified in part and otherwise affirmed the resettled judgment of the City Court, unanimously reversed, on the law and on the facts, and a new trial ordered, with costs to abide the event. In submitting the case to the jury, the trial court charged that the city could be held liable if it were found either that it had failed to remove the bedspring obstructing the sidewalk or had failed to properly maintain the street lights. The instruction as to liability by reason of the presence of the bedspring alone was erroneous. There being no evidence to charge the city with notice of such condition, it may not be held liable therefor. Thus, since it cannot be determined on which ground the jury held the city liable, a new trial is required as to it. (Fein v. Board of Educ. of City of N. Y., 305 N. Y. 611; Clark v. Board of Educ. of City of N. Y., 304 N. Y. 488.) A new trial is similarly required with respect to the defendant Broadway Maintenance Corp. The charge as to its duty to the plaintiff is unclear and, in effect, permitted the jury to impose liability if it found the street light to have been out, albeit no bedspring was present on the sidewalk. Without the concurrence of the presence of the bedspring and the absence of light, thereby creating a condition of danger, there could be no liability on the part of Broadway Maintenance Corp. Concur — Rabin, J. P., Valente, McNally, Stevens and Bastow, JJ.

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Determination of Appellate Term which modified in part and otherwise affirmed the resettled judgment of the City Court, unanimously reversed, on the law and on the facts, and a new trial ordered, with costs to abide the event. In submitting the case to the jury, the trial court charged that the city could be held liable if it were found either that it had failed to remove the bedspring obstructing the sidewalk or had failed to properly maintain the street lights. The instruction as to liability by reason of the presence of the bedspring alone was erroneous. There being no evidence to charge the city with notice of such condition, it may not be held liable therefor. Thus, since it cannot be determined on which ground the jury held the city liable, a new trial is required as to it. (Fein v. Board of Educ. of City of N. Y., 305 N. Y. 611; Clark v. Board of Educ. of City of N. Y., 304 N. Y. 488.) A new trial is similarly required with respect to the defendant Broadway Maintenance Corp. The charge as to its duty to the plaintiff is unclear and, in effect, permitted the jury to impose liability if it found the street light to have been out, albeit no bedspring was present on the sidewalk. Without the concurrence of the presence of the bedspring and the absence of light, thereby creating a condition of danger, there could be no liability on the part of Broadway Maintenance Corp. Concur — Rabin, J. P., Valente, McNally, Stevens and Bastow, JJ.

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Bluebook (online)

18 A.D.2d 1062, 239 N.Y.S.2d 142, 1963 N.Y. App. Div. LEXIS 3918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-city-of-new-york-nyappdiv-1963.

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