Appellate Division of the Supreme Court of New York, 1942

Spirgatis v. Gross Morton Corp.

Spirgatis v. Gross Morton Corp.
Appellate Division of the Supreme Court of New York · Decided February 9, 1942
263 A.D. 962; 32 N.Y.S.2d 959; 1942 N.Y. App. Div. LEXIS 7617
Spirgatis v. Gross Morton Corp.

Opinion of the Court

Action to recover damages for personal injuries sustained by the plaintiffs when the automobile in which they were riding struck a sewerhead projecting above the pavement level of a public street. Resettled judgment in favor of plaintiffs against *963both defendants modified on the law by striking out the recital that defendant City of New York’s motion for judgment on its cross-complaint is denied, and the provision dismissing the cross-complaint of said city for judgment over, and by substituting in place thereof a recital that the motion is granted; and by adding a decretal paragraph providing for such judgment. As thus modified, the judgment is unanimously affirmed, with costs to plaintiffs. Both defendants are liable in negligence to plaintiffs for the presence of the obstruction in the public street, defendant builder for having created the condition, and defendant city for having permitted it to continue after notice of its existence. The actively negligent one, however, is liable over to defendant city. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Settle order on notice.

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