Walsh v. City of New York , 96 N.Y.S. 540 ( 1905 )

Houghton, J. (dissenting):

notwithstanding the defective hydrant, I think it was incumbent upon the plaintiff to prove that the city in fact knew that ice had formed from the water running therefrom, or that ice had existed from that cause, for a sufficient length of time to give the city constructive notice. The water did not make the street defective." It was only after ice had formed that it became so. The fact that the water escaping from the hydrant would naturally freeze in cold weather, I do not think rendered the city liable to one slipping the moment it froze. The weight of testimony is that the ice formed during the night preceding the morning of the accident. Ho actual notice of its existence was proven, and sufficient time had not elapsed to constitute constructive notice. Hence, I vote 'to reverse the judgment, rather than to modify and affirm it.

Judgment and order reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including interest and costs, to $7,702.04; in which event judgment as so modified and order affirmed, without costs.