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BURKE v. CITY OF NEW YORK

2 N.Y.2d 90 (1956)

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.

Court of Appeals of the State of New York.

Reargued November 12, 1956.

Decided November 13, 1956.

Attorney(s) appearing for the Case

Edward S. Dore, Edward D. Burns and Martin Fogelman for appellants. William J. O'Shea for appellants, on reargument.

Peter Campbell Brown, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.

CONWAY, Ch. J., and DESMOND, J., concur with FULD, J.; EDER, J., concurs in a separate opinion; DYE, J., dissents in an opinion in which FROESSEL and VAN VOORHIS, JJ., concur; FROESSEL, J., dissents in a separate opinion in which DYE and VAN VOORHIS, JJ., concur; BURKE, J., taking no part.

FULD, J.

Mary Burke was seriously injured on a May day in 1950 as a result of a fall. While crossing Melrose Avenue, in the Borough of The Bronx, City of New York, she caught her foot in a hole under the rail of a trolley track and fell to the pavement. At that time, the tracks were not being used, buses run by the Third Avenue Transit Corporation having replaced the street cars previously operated by a predecessor...

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