Pfarr v. City of New York

Per Curiam. As one witness for plaintiff testified that on the morning of the day of the accident the break in the sidewalk was four inches deep and another of plaintiff’s witnesses stated that it was from two to "six inches in depth, we think that it was prejudicial error, in the circumstances of this case, for the court to decline to charge “ that if that condition or defect on the sidewalk was four inches or less in depth, their verdict must be for the defendant.” (Eger v. City of New York, 239 N. Y. 561; Griffin v. Town of Harrison, 268 id. 238, 241.) We also find that the verdict is against the weight of the credible evidence. The judgment should, [496] accordingly, be reversed and a new trial ordered, with costs to the appellant to abide the event. Martin, P. J., Glennon, Dore and Cohn, JJ., concur; Callahan, J., dissents.