Wilson v. Jaybro Realty & Development Co.

264 A.D. 776, 34 N.Y.S.2d 719, 1942 N.Y. App. Div. LEXIS 4678

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1942
• Status: Published

Opinion

In an action to recover damages for personal injuries and loss of services, judgment in favor of plaintiffs and against defendant Jaybro Realty & Development Co., Inc., entered on the verdict of a jury, reversed on the law, with costs, and the complaint dismissed on the law, with costs. Order setting aside the verdict as against defendant Manhattan Food Stores, Inc., modified on the law by striking from the decretal paragraph the words “ a new trial granted ” and inserting in place thereof the words “ complaint dismissed on the law, with costs.” As thus modified, the order is unanimously affirmed, with costs to respondent Manhattan Food Stores, Inc. The plaintiff wife stepped into an opening in a concrete sidewalk, a condition which had existed for several years. The opening was irregular in contour, being over two feet by eighteen inches in its horizontal dimensions, and described as being as much as three inches in depth. Testimony based on measurements was to the effect that the depth was one to one and one-half inches. When the said plaintiff stepped into the opening she fell and painfully injured her knee. The accident occurred in daylight; there was no evidence of previous accidents or of a violation of any duty imposed by positive law. The defect in the sidewalk must be held to have been so slight as to preclude a claim that it was dangerous. (Boyne v. City of Buffalo, 269 N. Y. 657; Newhall v. McCann, 267 id. 394, 397; Terry v. Village of Perry, 199 id. 79, 80; Butler v. Village of Oxford, 186 id. 444, 448; Hamilton v. City of Buffalo, 173 id. 72.) The other questions raised on the appeal are left undecided. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.