Nelson v. City of New York , 34 N.Y.S.2d 963 ( 1942 )

Action to recover damages for injuries suffered by plaintiff’s intestate as a consequence of her fall, due to stepping into a substantial break in the curb of the sidewalk at Fifth avenue and Ninety-second street, Brooklyn. Companion action for loss of services and expenses. Judgment for plaintiffs unanimously affirmed, with costs. The condition which caused plaintiff’s intestate to fall did not exist as a consequence of intentional and purposed construction on the part of the city. It existed because of neglect to repair a break in the curb of a character which a jury was free to find was dangerous. The condition may not be treated as being in the class of intentional construction of a sloping curb or a sloping sidewalk. Cases relating to the latter are inapposite. The curb condition existed as a consequence of neglect for at least a year. (Belmore v. Village of Amityville Corp., 255 App. Div. 1002; leave to appeal denied, 280 N. Y. 849; Clutterbuck v. Springfield, 261 Mass. 64; 158 N. E. 259.) The court’s rulings sustaining objections to questions propounded to the witness McNelus were correct. No proper foundation was laid for such questions. The witness was not shown to be familiar with the condition of which complaint is made. He was merely shown to be familiar with the location. Nor was it shown that the condition in respect of the curb at the time when he passed over it was the same as when the accident herein occurred. Neither was it shown that he had any official or personal duty to concern himself with whether or not there were prior accidents or complaints. Therefore, assuming, without deciding, that proof of prior accidents or absence thereof was permissible (although a condition relating to the construction of a sidewalk or structure or appliance, is not involved), no competent proof of this character was proffered. Competent evidence of this kind was' permitted in the course of the testimony of the police officer Barrett. Present — Hagarty, Carswell, Johnston, Adel and Taylor, JJ.