La Duke v. Hudson River Telephone Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, the Hudson Biver Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 21st day of November, 1906, .upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of Hovember, 1906, denying the defendant’s motion for a new trial made upon the minutes.
1Dissent
Coohbane, J. (dissenting):
The disposition of this case, I think, ignores the proper theory applicable thereto. The cause of the falling of the" pole was its rotten condition below the surface of the ground. Plaintiffs right to recover does not rest on the negligence of Higgs, the foreman, as is assumed in the prevailing opinion, but on the duty of the defendant to have inspected the pole. (See McGuire v. Bell Telephone Co., 167 N. Y. 208; Riker v. New York, Ontario & Western Railway Co., 64 App. Div. 357.) Such duty was primarily with the defendant, and plaintiff had a right to assume that it…
2Cases cited2 opinions
- McGuire v. . Bell Telephone Co.New York Court of Appeals · 1901
- Riker v. New York, Ontario & Western Railway Co.Appellate Division of the Supreme Court of the State of New York · 1901