Mcnally v. City of Cohoes

• Decision Date: 09 June 1891
• Citation: 127 N.Y. 350,27 N.E. 1043
• Parties: McNALLY v. CITY OF COHOES.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 350

27 N.E. 1043

McNALLY

v.CITY OF COHOES.

Court of Appeals of New York, Second Division.

June 9, 1891.

Appeal from supreme court, general term, third department.

POTTER and VANN, JJ., dissenting.

Matthew Hale, for appellant.

D. Cady Herrick, for respondent.

HAIGHT, J.

This action was brought to recover for personal injuries sustained by the plaintiff in falling upon a sidewalk in the city of Cohoes on the 7th day of February, 1885. The statute provides that ‘the city of Cohoes shall not be liable for any damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk, or cross-walk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice, or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous, or obstructed condition of said street, highway, bridge, culvert, sidewalk, or cross-walk shall have been given to the common council of said city or the superintendent of streets and public grounds of said city, at least twenty-four hours previous to such damage or injury.’ Laws 1881, c. 183. Prior to the passage of this act, the liability of the municipality could be established by showing constructive notice; and the evident purpose of the act was to prevent a recovery unless actual notice be shown. The words ‘shall have been given’ are used, but it is not specified how or in what manner notice shall be given. The word ‘notice,’ as used in this connection, imports information, intelligence, or knowledge. If the defendant's superintendent had actual information, intelligence, or knowledge of the defective, unsafe, or dangerous condition of the sidewalk, it would seem to answer the requirements of the statute. Actual notice may be established by evidence, either direct or circumstantial, the same as any other fact. The trial court appears to have been of the opinion that the evidence did not justify a finding that defendant's superintendent had actual knowledge of the condition of the sidewalk at the time of or the place where the plaintiff fell. It therefore becomes necessary to determine whether the evidence is of that character which requires a reversal. The plaintiff tells us that she was upon the sidewalk upon Factory street; that it was covered with a glare of ice its entire width up to within a foot of the building, and that it extended length wise of the walk about five feet; that she saw it, stopped, and looked at it,...