Vandeskie v. City of New York

Appellate Division of the Supreme Court of New York

Vandeskie v. City of New York

85 N.Y.S. 836, 89 A.D. 625

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

DecidedDecember 30, 1903

StatusPublished

This text of 85 N.Y.S. 836 (Vandeskie 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.

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Vandeskie v. City of New York, 85 N.Y.S. 836, 89 A.D. 625 (N.Y. Ct. App. 1903).

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Opinion

JENICS, J.

The action is for negligence. Plaintiff complains of injuries consequent to her slip into a hole or depression in the street. The defendant requested the court to charge the following, which was refused, under exception:

“I ask your honor to charge that there is no evidence that the hole into which the plaintiff claims to have fallen was dangerous, or such holes [sic] would have required any affirmative action on the part of the city.”

I fail to find any evidence to warrant any finding as to the character or dimensions of the hole. For aught that appears, the hole, [837]*837if it existed, may have been similar to that considered in Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N. E. 944, or even a lesser defect. I take it that it was essential to a recovery that there should have been some evidence to free the case from the rule laid down in Hamilton’s Case, supra. See, too, Schall v. City of New York (Sup.) 84 N. Y. Supp. 787.

The judgment and orders should be reversed, and a new trial ordered ; costs to abide the event. All concur.

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JENICS, J.

The action is for negligence. Plaintiff complains of injuries consequent to her slip into a hole or depression in the street. The defendant requested the court to charge the following, which was refused, under exception:

“I ask your honor to charge that there is no evidence that the hole into which the plaintiff claims to have fallen was dangerous, or such holes [sic] would have required any affirmative action on the part of the city.”

I fail to find any evidence to warrant any finding as to the character or dimensions of the hole. For aught that appears, the hole, [837]*837if it existed, may have been similar to that considered in Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N. E. 944, or even a lesser defect. I take it that it was essential to a recovery that there should have been some evidence to free the case from the rule laid down in Hamilton’s Case, supra. See, too, Schall v. City of New York (Sup.) 84 N. Y. Supp. 787.

The judgment and orders should be reversed, and a new trial ordered ; costs to abide the event. All concur.

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85 N.Y.S. 836, 89 A.D. 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandeskie-v-city-of-new-york-nyappdiv-1903.

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