Larsen v. City of New York , 54 N.Y.S.2d 528 ( 1945 )

Action by plaintiff wife to recover damages for personal injuries claimed to have been due to the fault of defendant City in the maintenance of a concrete sidewalk, having an abrupt difference in level of over six inches, across which point the wife was proceeding, as a pedestrian, in the evening, and by reason of which, through the sudden drop as she stepped down, she was caused to fall; and companion action by her husband for expenses and loss of services. Defendant City impleaded defendant Toporoff, the owner of the adjoining property located at the higher level, claiming that this portion of the sidewalk had been constructed by such impleaded defendant, or her predecessor in title, above the legal grade of the street, and that, if the City be held liable to plaintiffs, then the impleaded defendant should be adjudged liable over to the City. At the trial the City’s cross complaint was dismissed at the close of its case. The jury rendered a verdict in favor of plaintiffs against defendant City upon the original causes of action. A judgment, subsequently resettled, was entered covering both phases of the litigation, from which defendant City has appealed. Resettled judgment unanimously affirmed, with costs. The difference in levels at the point where plaintiff wife fell was sufficient to create a question of fact for the jury. (Braman v. City of New York, 244 App. Div. 735.) The record does not show that either the impleaded defendant or her predecessor in title built the sidewalk, or that such impleaded defendant had ever been notified by the municipal authorities to change the grade thereof. No defect in the surface of the sidewalk or in the physical construction thereof was established. Under such circumstances there was a failure by the City to show that the accident occurred as the result of a failure by the impleaded defendant to perform some duty which she owed to the City. (Doyle v. Union Railway Co., 276 N. Y. 453, 456.) Present — Carswell, Acting P. J., Johnston, Adel, Lewis and Aldrich, JJ.