Lyman v. Village of Potsdam , 173 A.D. 390 ( 1916 )

Per Curiam:

It is the duty of a municipality to keep its streets free from obstructions. Here the municipality invited obstructions. The rubbish was not kept within the limits of the premises of the property owners but was deposited into the streets by invitation of the village officers who seemed to have assumed the responsibility of removing undesirable objects for the benefit of the residents instead of requiring or at least allowing the residents to do that work for themselves. It may have been public spirited and for that reason commendable, but the village was not for that reason relieved from its responsibility. A nuisance was created with the consent and on the invitation of the village authorities. Two hours before the accident the president of the village drove through the streets and saw the particular obstruction which caused the accident in question. He did not direct its removal by the owner or take any steps in anticipation of the accident. The facts presented required the submission of the case to the jury and the dismissal of the complaint was error. If the trial justice deemed the evidence weak or unsatisfactory he might properly have set aside the special verdict as against the weight of evidence and granted a new trial. Under the circumstances, instead -of reinstating the verdict a new trial is ordered on this appeal.

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

All concurred, except Kellogg, P. J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.