Betor v. City of Albany
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The City of Albany, from an order made at a Special Term of the County Court of the county of Albany and entered in the office of the clerk of the county of Albany on the 27th day of March, 1920, sustaining the plaintiff’s demurrer to the defense set forth in the fifth paragraph of defendant’s answer, upon the ground that said defense is insufficient in law on the face thereof.
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Appeal by the defendant, The City of Albany, from an order made at a Special Term of the County Court of the county of Albany and entered in the office of the clerk of the county of Albany on the 27th day of March, 1920, sustaining the plaintiff’s demurrer to the defense set forth in the fifth paragraph of defendant’s answer, upon the ground that said defense is insufficient in law on the face thereof. The issue of law herein was brought on and tried as a contested motion pursuant to section 976 of the Code of Civil Procedure.
1Opinion of the Court
John M. Kellogg, P. J.:
One O’Neill maintained a cellarway extending from the house line into the sidewalk, and a frame erection prevented pedestrians from falling into it from the side, or at one end; the other end apparently was open. It is claimed that the cellarway extending into the sidewalk was a nuisance and that the defendant is liable for the damages sustained by the plaintiff who, in using the sidewalk, fell into the cellarway. The answer alleges that the plaintiff had brought an action against O’Neill for the same injury, and had been defeated upon the merits, and that if the city…
2Cases cited6 opinions
- National Park Bank v. BillingsAppellate Division of the Supreme Court of the State of New York · 1911
- The National Park Bank of New York v. . BillingsNew York Court of Appeals · 1911
- Featherson v. President of Newburgh & Cocheton Turnpike Co.New York Supreme Court · 1893
- City of New York v. HearstAppellate Division of the Supreme Court of the State of New York · 1911
- Henn v. City of Mount VernonAppellate Division of the Supreme Court of the State of New York · 1920
1 more not listed; retrieve them via the Exa API.
3Cited by5 opinions
- Eastland County v. DavissonTexas Commission of Appeals · 1929
- Brooks v. City of BirminghamSupreme Court of Alabama · 1940
- Schubert v. August Schubert Wagon Co.Appellate Division of the Supreme Court of the State of New York · 1928
- Cooper v. H. L. Hunt, Inc.Court of Appeals of Texas · 1935
- Schubert v. August Schubert Wagon Co.New York Supreme Court · 1927