Verdacchi v. Brooklyn & Queens Transit Corp.

251 A.D. 744, 295 N.Y.S. 887, 1937 N.Y. App. Div. LEXIS 7345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1937
• Status: Published

Opinion

Action by wife and husband to recover, respectively, for personal injuries and loss of services. The wife was injured when, as alleged, her foot was caught in' a hole adjacent to defendant’s trolley track. Plaintiffs appeal from the judgment dismissing the complaint at the close of their case. Judgment reversed on the law and a new trial granted, costs to abide the event, upon the ground that, the defect being in the street and not in a part of defendant’s road equipment, plaintiffs could not prevail unless it were shown that defendant had either actual or constructive notice of the defect, and it was error, therefore, to exclude proof of such notice. Lazansky, P. J., Davis and Adel, JJ., concur; Carswell and Close, JJ., concur upon the ground that liability attached even though defendant did not have either actual or constructive notice of the defect. (Worster v. Forty-second Street, etc., R. R. Co., 50 N. Y. 203.)