Moore v. City of Yonkers
| Decision Date | 19 May 1958 |
| Citation | 6 A.D.2d 712,174 N.Y.S.2d 680 |
| Parties | Robert MOORE, Respondent, v. CITY OF YONKERS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William F. Cauley, Jr., Yonkers, for appellant.
William A. Walsh, Jr., Yonkers, for respondent.
Before NOLAN, P. J., and BELDOCK, MURPHY, UGHETTA and HALLINAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the appeal is from an order denying appellant's motion for judgment on the pleadings, dismissing the amended complaint. Respondent, a patrolman in the Police Bureau, Department of Public Safety, City of Yonkers, was injured when a motorcycle which he was riding, in the performance of his duties, struck and fell into a hole in a city street, throwing him into the air and to the ground. He commenced this action on September 15, 1954 and thereafter on August 1, 1955 was retired, on application of the Commissioner of the Department of Public Safety, on an accidental disability retirement allowance pursuant to the provisions of the Civil Service Law, which provisions are now found in the Retirement and Social Security Law, § 1 et seq. On November 26, 1957 an amended answer was served setting up as separate defenses assumption of risk and election of remedies. A reply to these separate defenses was served.
Order affirmed, with $10 costs and disbursements.
While it is true that in the ordinary case allegations contained in a separate defense are deemed denied or traversed, nevertheless where, as here, a reply to the separate defenses has been served, the issues are clearly drawn and all the pleadings and bills of particulars should be considered and if no triable issue of fact is presented judgment on the pleadings may properly be granted (Gracie Square Realty Corp. v. Choice Realty Corp., 305 N.Y. 271, 113 N.E.2d 416; Mack, Miller Candle Co. v. MacMillan Co., 239 App.Div. 738, 269 N.Y.S. 33). In accepting and continuing his employment, respondent assumed the rather obvious and commonly known risk that there might be defective and dangerous conditions existing in the streets he was required to patrol, and the hazards were quite as open and obvious to him as to the municipality; nonetheless it may not be held as a matter of law that under the facts here pleaded the respondent assumed the risk of the 'deep and dangerous hole' which the amended complaint alleges existed. The precise nature of the hole should be established by evidence, and it will...
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