Opinion
March 27, 1958
Appeal from a judgment entered on the verdict of a jury rendered at a Trial Term, Supreme Court, Albany County. Plaintiff testified she fell on May 18, 1955 in a hole in the public sidewalk in front of defendant's premises in the city of Albany and was injured. Defendant was not required by law or ordinance to repair the sidewalk and would not be responsible had he neglected to repair it. There is proof, however, that he undertook to repair it with cement patchwork in the part of the sidewalk in which plaintiff fell. There is evidence that the patchwork which was installed "nearly every year" would come out the following spring and that when it came out more material would come out with it. A witness testified that "not only would you lose what you had there before but you would lose, along with it, more too". Although this was no doubt due to frost, the jury could find that the work of successive years had been so improperly done on the sidewalk as to facilitate frost damage and increase the danger and that thus the hole was in some degree due to improper repairs undertaken by the landlord. If such a finding is justified by the record, and we believe that it is, the verdict is well-founded. Moreover, the danger could be found to have existed in the very place in which the repair was made and in the light of evidence of improper repair, this alone would justify the inference of negligence. Judgment affirmed, with costs. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.