McCormack v. City of Brooklyn , 35 N.Y.S. 1111 ( 1895 )

Van Wyck, J.

The plaintiff alleges in his complaint, and he and his witnesses testify, that defendant suffered a loose flagstone to remain upon the flagged part of the sidewalk, and that plaintiff, while walking along such flagged portion, stumbled o ver this ■ loose flag resting. thereupon. The testimony of defendant’s witnesses was to the effect that no such loose flagstone rested upon' or projected over the flagged part of the walk. If this latter version be true, then .the former cannot be,, and we think the court properly instructed the jury that, unless the loose flag rested upon or projected over the flagged part of the walk, the plaintiff cannot recover. We find no ruling to which, an exception 'was taken which was harmful to plaintiff.

The judgment and order must be affirmed, with costs.

Osborne, J., concurs.

Judgment and order, affirmed, with costs.'