Van Hovenburg v. City of New York

Manning, J. Upon the trial of this action the complaint was dismissed at the close of the plaintiff’s proof on two grounds: First. That no actionable negligence on the part of the city was shown, and, second, that the notice required by law to be served upon the proper officers of the municipality was insufficient. A motion for a new trial is made and it is argued, on the part of the plaintiff, that the defendant was •negligent in permitting a hole or depression to exist in the sidewalk, and that such hole or depression was the proximate cause of the injury. The answer to this contention is that while the plaintiff on her direct examination declared that the cause of the accident was the falling into the hole, upon cross-examination she admitted that the cause of her fall was not the hole or depression, but that she slipped upon a piece of ice some distance from the hole or depression and that in falling her foot went into the, hole. The following questions, therefore, arise: Did the injury occur during the slipping? If so, the city would not be liable. Again: Did the injury occur after the plaintiff’s foot went into the hole or by reason of its entering the hole? If so, in either case the city might be liable. The difficulty is that the jury could not be permitted to guess or speculate as to which of the causes the accident might be attributed. Taylor v. City of Yonkers, 105 N. Y. 202; Searles v. Manhattan R. Co., 101 id. 661. The next difficulty is with the notice, which describes [371] the place where the accident happened as follows: “the claimant herein, Naomi Van Hovenburg, was walking on the left hand side of Euclid Avenue, in the Borough of Brooklyn, City of New York going in the direction of Liberty Street, and when she arrived at Euclid Avenue about 100- ft. from Liberty Ave. ’’ The objection to this notice is that it does not state with any degree of reasonable certainty “ the place where the injury was sustained.” From this description in the notice it is impossible to say whether the accident happened on Euclid avenue east of Liberty avenue, or on Euclid avenue west of Liberty avenue. The wording of the notice is very vague and indefinite. Plaintiff says therein that she was walking “ on the left-hand side of Euclid avenue.’’ There are two left-hand sides to the street in question dependent entirely as to whether a person is proceeding in an easterly or westerly direction. I think the notice is clearly insufficient, and comes within the rule set forth in the following cases wherein notices of this character have been pronounced defective: Purdy v. City of New York, 193 N. Y. 521; Learned v. Mayor, 21 Misc. Rep. 601; McClorey v. City of New York, 158 App. Div. 946. The notice in the McGlorey case states that the accident happened at the northeast comer of a certain street, while the proof showed that it was the southeast corner. The trial court, Mr. Justice Maddox, in dismissing the complaint held that the notice was insufficient and the decision was unanimously affirmed by the Appellate Division. The notice in the present case is far more vague and uncertain, and to my mind is not even a reasonable compliance with the law. Motion for a new trial denied. Motion denied.