Decker v. City of New York
Appellate Division of the Supreme Court of the State of New York
Motion by the plaintiff, Frank Decker, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate . Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term in April, 1911. The action is for negligence in permitting the pavement in a street in the borough of Brooklyn to be and to become out of repair.
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Motion by the plaintiff, Frank Decker, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate . Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term in April, 1911. The action is for negligence in permitting the pavement in a street in the borough of Brooklyn to be and to become out of repair. The plaintiff complained that when he was driving a horse and wagon in that street the wheels of the wagon went into a hole in the street so that he was…
1Opinion of the Court
Jenks, P. J.:
If the hole or depression presented a question of fact, the other proof at the close of plaintiff’s case as to defendant’s negligence required submission to the jury. The street was paved with asphalt. Several witnesses for the plaintiff testified tó the size of the -depression. The plaintiff described - it as 5 feet long, 3 feet wide and 5 inches deep. One witness could not estimate its length or width, but said that it' was 5 inches deep. Another testified that it was 5 by 2% feet and 5 inches deep. Still another said that it was 4 or 5 feet long, 16 or 18 inches wide and from…
2Cases cited3 opinions
- Henderson v. . HendersonNew York Court of Appeals · 1889
- Terry v. . Village of PerryNew York Court of Appeals · 1910
- Durr v. New York Central & Hudson River RailroadNew York Court of Appeals · 1906
3Cited by2 opinions
- Moshier v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1919
- City of Ardmore v. FowlerSupreme Court of Oklahoma · 1915