Yavorsky v. Alexander Smith & Sons Carpet Co. 1 A.D.2d 892

Action to recover damages for personal injuries suffered when appellant fell while crossing respondent’s private way which connects two public streets. It was raining at the time, and the way was unlighted. Appellant’s foot contacted a cobblestone which was one of a line of such stones constituting a drain on the way. The conditions on the way had existed for at least ten years, to appellant’s knowledge. Appellant was using the way as a short cut for his own convenience. The evidence is undisputed. At the close of the entire case, the court granted a motion to dismiss the complaint on the grounds that there was no duty owing to appellant from respondent and that the evidence is legally insufficient to establish a dangerous condition on the way or appellant’s freedom from contributory negligence. The appeal is from the judgment entered thereon. Judgment unanimously affirmed, with costs. No opinion. Present — Beldock, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.