Ayers v. Village of Herkimer

Full title: ADELBERT AYERS, Respondent, v. VILLAGE OF HERKIMER, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 9, 1936

248 App. Div. 945 (N.Y. App. Div. 1936)

Opinion

October 9, 1936.

Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ.

Judgment and order affirmed, with costs.

All concur, except Taylor and Crosby, JJ., who dissent and vote for reversal on the law and for dismissal of the complaint, in the following memorandum:

While each case must be judged upon its own peculiar facts, this case does not differ greatly from Moore v. City of Lockport ( 228 App. Div. 162) and Zagorski v. City of Buffalo (244 id. 761). We do not regard the defect in the sidewalk, in this case, as sufficiently serious to cause reasonable persons to anticipate an accident therefrom. According to plaintiff's own testimony the cap to the water shutoff which caused plaintiff to fall was too high to constitute a trap that could catch and hold plaintiff's foot. (The judgment is for plaintiff in an action for personal injuries sustained by falling over water valve protruding above sidewalk. The order denies a new trial on the minutes.)