Schmidt v. City of New York 228 N.Y. 573

Leonard Schmidt, Appellant, v. The City of New York et al., Respondents, Impleaded with Another.

Schmidt v. City of New York, 179 App. Div. 671, affirmed.

(Argued February 27, 1920;

decided March 16, 1920.)

Appeal from a judgment entered November 16, 1917', upon an order of the Appellate Division of the Supreme. Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict in an action to recover for loss of services of plaintiff’s infant daughter and for expense occasioned plaintiff by reason of personal injuries alleged to have been received by her through the negligence of defendants. Plaintiff’s daughter, in alighting from a car, stepped upon one of the planks covering the excavation for a subway in course of construction. The plank broke and she fell through and was injured. The Appellate Division held that there was no evidence that the defendants had notice, either actual or constructive, of a defect in the planking and that in its absence neither the city nor the contractor can be held chargeable with negligence.

Peter Klein for appellant.

William P. Burr, Corporation Counsel (John F. O’Brien of counsel), for city of New York, respondent.

Frederick L. C. Keating for Bradley Contracting Company, respondent.