Dempsey v. City of New York

A piece of flagstone about two by four feet in dimensions was removed'from the middle of the sidewalk in front of premises No'. 690 East One Hundred and Forty-third street, and a hole was formed varying from three inches on the sides to six inches deep in the middle. That hole had remained there for eleven months, when, on a dark night, the plaintiff stepped into it and received injuries from .the fall thus caused, for which this action is brought. Unless municipalities are to be absolutely immune from- damages caused by defective streets and ¡sidewalks, the questions in this .case were for the jury.

It seems.to me that, as a matter of fact, the negligence of the defendant is not even debatablebut, if- it were, the plaintiff supplied the necessary proof by showing that similar accidents were of daily occurrence. The learned trial court dismissed the complaint on the authority of Gastel v. City of New York (194 N. Y. 15), but, so far from supporting the nonsuit, the opinion of Judge His-cooK- in that case shows that this case should have been submitted to the jury. , -

■ The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Láugiilin and Dowling, JJ., concurred. '

Judgment reversed, new trial ordered, costs to appellant to abide event. ■ •