Curcio v. City of New York

• Decision Date: 13 July 1937
• Citation: 9 N.E.2d 760,275 N.Y. 20
• Parties: CURCIO v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

275 N.Y. 20

9 N.E.2d 760

CURCIO

v.CITY OF NEW YORK.

Court of Appeals of New York.

July 13, 1937.

Action by Agnes Curcio, as administratrix of the goods, chattels, and credits which were of John A. Curcio, deceased, against the City of New York. From an order of the Appellate Division (249 App. Div. 844, 292 N.Y.S. 868) which reversed, on the law and facts by a divided court, the judgment of the Trial Term without a jury dismissing the complaint, the defendant appeals, upon a stipulation pursuant to subdivision 2 of section 588 of the Civil Practice Act, for judgment absolute against it in the event of affirmance.

Order of the Appellate Division reversed, and judgment of Trial Term affirmed. Appeal from Supreme Court, Appellate Division, Second department.

Paul Windels, Corp. Counsel, of New York City (Frederick V. P. Bryan and Leonard M. Wallstein, Jr., both of New York City, of counsel), for appellant.

Charles J. Buchner, of Brooklyn, for respondent.

RIPPEY, Judge.

This is an action to recover damages for the death by drowning of John A. Curcio in a swimming pool maintained by the defendant in a building known as the Public Baths on the corner of President street and Fourth avenue in the borough of Brooklyn, New York. The case was tried before the court without a jury, and resulted in a verdict for the defendant dismissing the complaint. The Appellate Division, Second Department, reversed the judgment of the Trial Term on the law and the facts and granted a new trial; one justice dissenting. The defendant appeals to this court on a stipulation for judgment absolute in the event that the decision of the Appellate Division is affirmed. If there is an issue of fact in the case, the judgment of the Appellate Division must be affirmed, even though the Court of Appeals disagrees with the Appellate Division as to where the weight of the evidence lies. World Exchange Bank v. Commercial Casualty Ins. Co., 255 N.Y. 1, 173 N.E. 902. The appellant contends, however, that there is no evidence of negligence on the part of defendant, or, if it should be held that there was such evidence, that it was not the proximate cause of the drowning, and that a reversal on the facts by the Appellate Division is error of law, which the Court of Appeals may review. Rockowitz Corset & Brassiere Corporation v. Madame X Co., 248 N.Y. 272, 162 N.E. 76.

John A. Curcio was, at the time of the accident, over six feet tall, nearly twenty-two years of age, a student at Brooklyn College, about to graduate the following June in the medical course, and a member of the swimming team of the college. He and three other young men, who were expert swimmers, were swimming in the pool between 4:30 and 5:00 p. m., January 31, 1933. One of the swimmers heard a groan or yell after they had been swimming around for a few minutes, but paid no attention to it, and he and another boy left the pool and went on the platform for the purpose of diving, where they remained for about a minute, when the lifeguard, in charge of the pool and then standing on the balcony overlooking the pool, pointed to the water and shouted, ‘Quick, down there,’ whereupon one of the men on the platform dived into the pool, secured Curcio, brought him to the side, and he and the lifeguard, who had by that time descended from the balcony and had reached the platform, pulled Curcio out of the water. Immediate efforts at resuscitation failed. The medical testimony showed that Curcio died from asphyxiation and that there was an abrasion one-half inch by three-eighths inch on the right cheek midway between the eye and ear, abrasions on the bridge of the nose, an abrasion one-quarter inch long of the upper lip at the right of the midline, and an abrasion of one-quarter inch in diameter on the left side of his chin. No one saw Curcio enter the pool, and there is no evidence, other than above stated, as to what happened after he entered the pool.

There was a balcony running around the building and above the platform, from which entrance was had to the pool. A view of this pool was at all times available from the balcony. The pool was forty feet wide by sixty feet long, six feet deep at one end, with the bottom sloping upward so that the water was three feet deep at the shallow end. Curcio was found in the water at a depth of about five feet. The use of the pool was customarily given over to small boys up to 4:30 p. m. each afternoon. At that time on the afternoon in question the guard ordered about sixty boys out of the water and proceeded with them to the balcony, where they had their shower and dressing rooms. Generally, older men did not have access to the pool until about 5:00 p. m., the interval...