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SMULLEN v. CITY OF NEW YORK

28 N.Y.2d 66 (1971)

Lorraine Smullen, as Administratrix of The Estate of Anthony J. Accetta, Deceased, Appellant, v. City of New York, Respondent, et al., Defendant.

Court of Appeals of the State of New York.

Decided February 25, 1971.

Attorney(s) appearing for the Case

Robert G. Burkhart and James P. Shannon for appellant.

J. Lee Rankin, Corporation Counsel (Jesse I. Levine, Stanley Buchsbaum and Alfred Weinstein of counsel), for respondent.

Chief Judge FULD and Judges SCILEPPI and BERGAN concur with Judge GIBSON; Judge BREITEL dissents and votes to affirm in a separate opinion in which Judge JASEN concurs; Judge BURKE taking no part.

GIBSON, J.

Plaintiff's intestate, while employed by an excavation subcontractor engaged in the construction of a private sewer line in a city street, was killed by the cave-in of the trench in which he was working. His administratrix brought this wrongful death action against the general contractor and the City of New York and at Trial Term had a verdict against the city. The jury exonerated the general contractor...

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