Mackey v. City of New York

Full title: JOHN J. MACKEY, Respondent, v . THE CITY OF NEW YORK, Appellant

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

Date published: Oct 4, 1907

121 App. Div. 473 (N.Y. App. Div. 1907)

106 N.Y.S. 114

Opinion

October 4, 1907.

Theodore Connoly [ Royal E.T. Riggs and William B. Ellison with him on the brief], for the appellant.

George F. Hickey [ William E. Stewart with him on the brief], for the respondent.

MILLER, J.:

This is a sidewalk case. The defect complained of was a depression caused by the construction of a curb about ten or twelve inches from the old curb without sufficiently filling in the intervening space. The plaintiff was permitted to prove, over the specific objection that the evidence was irrelevant, that this space was filled in shortly after the accident. Such evidence in this class of cases has too frequently been condemned to require any discussion or citation of authorities now. As the judgment must be reversed for said error it would be profitless to discuss the merits at this time.

I advise that the judgment and order be reversed.

JENKS, HOOKER, GAYNOR and RICH, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.