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BURKE v. CITY OF NEW YORK

285 A.D. 677 (1955)

Mary Burke, Plaintiff, v. City of New York, Respondent, and I. Howard Lehman et al., as Trustees in Reorganization of Third Avenue Transit Corporation, Appellants

Appellate Division of the Supreme Court of the State of New York, First Department.

May 10, 1955.

Attorney(s) appearing for the Case

Edward D. Burns of counsel (Addison B. Scoville and Stuart Riedel with him on the brief; Saxe, Bacon, O'Shea & Bryan, attorneys), for appellants.

Fred Iscol of counsel (Seymour B. Quel with him on the brief; Leo A. Larkin, Acting Corporation Counsel, attorney), for respondent.

PECK, P. J., and COHN, J., concur with BOTEIN, J.; CALLAHAN, J., dissents in opinion in which BASTOW, J., concurs.

BOTEIN, J.

Plaintiff, while walking across Melrose Avenue, in Bronx County, caught her foot in a hole underneath the rail of an unused trolley track, pitched forward and sustained serious injuries. There was testimony that the cobblestone roadway sagged a good six inches below the lip of the rail at the point where the accident occurred, and that this condition had existed for several months.

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