Nekris v. Yellen , 277 A.D.2d 779 ( 1950 )

The action is to recover damages for personal injuries suffered by plaintiff, a passenger on a ferryboat owned and operated by the City of New York when an “ accordion type ” gate, which when down closes the passenger passageway, but which at the time of the accident was up, fell and struck him as he was leaving the boat at the Staten Island Terminal. Plaintiff sued both the city and defendants Yellen, the owners of a truck which, it was claimed, was operated so negligently as to cause it to come in contact with a similar type gate which, when down, covers one half of the vehicle gangway but which, at the time of the accident, also was up. The latter gate operates simultaneously with the gate which struck plaintiff. The jury awarded a unanimous verdict against both defendants and they appeal from the judgment entered thereon. Resettled judgment modified on the law by striking from the first decretal paragraph the words “and The City of New York, Municipal Building, Borough of Manhattan, City of New York”; and by adding a decretal paragraph that the complaint of plaintiff against defendant City of New York is dismissed. As thus modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to plaintiff against defendants Yellen, and with costs to defendant City of New York against plaintiff. The evidence is sufficient to sustain a finding of negligent operation of the truck against defendants Yellen. However, there is no evidence of negligence as to defendant City of New York. There is no proof that the gate was defective, or that it was not properly constructed, or that the city’s employee guided the Yellen truck in such a way as to cause the contact of the truck with the gate. Present — Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ.