Foster v. City of New York
| Decision Date | 29 May 1959 |
| Citation | 188 N.Y.S.2d 557,6 N.Y.2d 852 |
| Parties | , 160 N.E.2d 90 William FOSTER, Appellant, v. CITY OF NEW YORK, Respondent, Michael J. Adrian Corporation et al., Defendants. MICHAEL J. ADRIAN CORPORATION, Third-Party Plaintiff, v. LATORRACA & SON, Third-Party Defendant. CITY OF NEW YORK, Third-Party Plaintiff, v. LATORRACA & SON, Third-Party Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 6 A.D.2d 683, 174 N.Y.S.2d 944.
Pedestrian brought action againt the City of New York and others for injuries sustained by pedestrian when he allegedly tripped and fell when toe of left shoe became wedged in corner of portion of sidewalk, which was raised about an inch, on ground that city was negligent in permitting the sidewalk to remain in a broken, torn, uneven, irregular, raised, and defective condition.
The Supreme Court, New York County, Coleman, J., entered judgment dismissing the complaint after jury returned a verdict awarding $6,000 to pedestrian, and the pedestrian appealed.
The Appellate Division unanimously affirmed the judgment without opinion.
The pedestrian appealed to the Court of Appeals and made a motion in the Court of Appeals for leave to prosecute the appeal as a poor person and for assignment of counsel.
The Court of Appeals, 5 N.Y.S.2d 927, 183 N.Y.S.2d 286, granted motion for leave to prosecute appeal as a poor person and for assignment of counsel, and assigned Seymour Epstein of 2689 Broadway, New York City, as counsel for the pedestrian on appeal.
The City of New York contended in the Court of Appeals that no breach of duty towards pedestrians was established, and that portion of sidewalk where the pedestrian fell was in a reasonably safe condition, and that there was no proof that the alleged defect was in the nature of a 'trap' or 'snare', and that under such circumstances the trial court was bound as a matter of law to set aside the verdict and dismiss the complaint.
Seymour Epstein, New York City, and Bernard Meyerson, Brooklyn, for appellant.
Charles H. Tenney, Corp. Counsel, New York City (Seymour B. Quel and John A. Murray, New York City, of counsel), for respondent.
Judgment reversed and a new trial granted, with costs to abide the event, upon the ground that plaintiff established a prima facie case in negligence.
All concur except DESMOND, VAN BOORHIS and BURKE, JJ., who dissent and vote to affirm upon the ground that the undisputed proof as to the...
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