Opinion
April 4, 1912.
Loyal Leale [ Terence Farley with him on the brief], for the appellant.
Jonathan Deyo, for the respondent.
About mid-day on the 20th day of January, 1909, the plaintiff, while walking easterly on the southerly sidewalk of East Sixty-seventh street, between Second and First avenues, slipped and fell on ice in front of premises known as 348 East Sixty-seventh street, sustaining the injuries to recover for which he brought this action. The evidence, viewed in its most favorable light to the plaintiff, tends to show that there was rough or uneven frozen snow or ice of the depth of about one and one-half to two and one-half inches on the walk at the point where the plaintiff slipped; that the walk in front of the premises known as 346-348 East Sixty-seventh street was covered with ice or snow, and showed footprints thereon; that other parts of the walk were free from ice or snow; that on the thirteenth and fourteenth of the month three inches of snow fell, and that there had been no storm prior to that time since the sixth of the month; that there was no storm on the fifteenth, but that on the sixteenth two and a quarter inches of snow fell, and on the seventeenth one inch of very wet snow fell, for, melted, it made sixty-two one-hundredths of an inch of water, and the storm lasted fifteen hours, and was the last storm before the accident; that on the sixteenth the mean temperature was twenty-one and one one-hundredths degrees above zero, and on the seventeenth thirty and seven one-hundredths degrees, and on the eighteenth from twenty-three degrees to thirty-three degrees, and on the nineteenth from five degrees to thirty-two degrees, and on the day of the accident from twenty-five degrees at seven A.M. to thirty-six degrees at noon; that the snow which fell on the sixteenth and seventeenth of the month probably had not been removed, and that the condition of the walk from that time until the time of the accident underwent a change to some extent, owing to the changes in temperature and to the use of the walk by pedestrians, and its condition was described by one witness as "pretty good" the day before the accident, but the witness said that the more people passed over it the rougher it became. The city proved the ordinance by which it enjoined upon owners and occupants of premises the duty of removing snow and ice from the walk. There was no evidence of actual notice to the city of the condition of the walk, or that its condition was such that any one else had fallen upon it.
We are of opinion that the plaintiff failed to show that the walk had been in an unsafe and dangerous condition for such a length of time as to charge the city with constructive notice thereof, and to render it liable for failing to remove the obstruction formed by the snow and ice. ( Harrington v. City of Buffalo, 121 N.Y. 147; Taylor v. City of Yonkers, 105 id. 202; Berger v. Mayor, 65 App. Div. 394; Owen v. City of New York, 141 id. 217; Schneider v. City of New York, 143 id. 216.)
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., CLARKE, SCOTT and MILLER, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.