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EDGETT v. STATE OF NEW YORK

7 A.D.2d 570 (1959)

Erwina Edgett et al., Respondents, v. State of New York, Appellant. (Claim Nos. 32969, 32970.)

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

April 29, 1959.

Attorney(s) appearing for the Case

Louis J. Lefkowitz, Attorney-General (Harry Silvers and Paxton Blair of counsel), for appellant.

Joseph P. Leary for respondents.

COON and REYNOLDS, JJ., concur with HERLIHY, J.; FOSTER, P. J., and BERGAN, J., dissent in a memorandum and vote to reverse the judgments and dismiss the claims.

HERLIHY, J.

On October 15, 1955, at about 10:00 P.M., while driving on Route 28 in the County of Otsego, a large limb fell from a tree (which was on the right of way of the State) striking the automobile in which the claimants were riding and causing serious injuries.

There is no claim that the claimants were guilty of contributory negligence and the record substantiates such fact.

The State contends...

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