Kolsch v. H. F. Huettner, Inc.

Johnston, J. The action was brought against the corporate defendant and the town of Oyster Bay to recover for personal injuries sustained by Elfrieda Kolsch when she fell at a gully or depression in a sidewalk in Hicksville, town of Oyster Bay, and for her husband’s loss of services. Prior to the trial, by an order entered June 10, 1935, the complaint was dismissed as against the town of Oyster Bay, and the action was continued against the remaining defendant. The appeal is from the judgment dismissing the complaint at the close of plaintiffs’ case. The gully or depression was six inches in width and varied in depth from an inch and a quarter to an inch and five-eighths, and it is admitted it was maintained by the defendant to carry rain water from a drain pipe on the side of its building across the sidewalk to the gutter. It was error not to submit to the jury the question as to whether the gully or depression constituted a [203] nuisance. (Kirschenbaum v. Oschuetz, 261 N. Y. 519; O’Rourke v. Castagnola, 242 App. Div. 638; Feinman v. Rubenstein, 240 id. 899; affd., 264 N. Y. 662.) The judgment should be reversed on the law and a new trial granted, costs to abide the event. Lazansky, P. J., and Close, J., concur; Hagarty and Davis, JJ., dissent and vote to affirm. Judgment dismissing complaint reversed on the law and a new trial granted, costs to abide the event.