Opinion
June 28, 1943.
Action to recover damages for injuries sustained in tripping against the side of a manhole cover constructed and maintained by the defendant Brooklyn Edison Company, Inc., in an unpaved portion of a sidewalk immediately north of the northerly curbstone of Benson Avenue near the intersection of that highway with Bay 35th Street, Brooklyn, and approximately seventeen feet east of the easterly curb of Bay 35th Street. Adjacent to the north side of the manhole cover there was a paved area of sidewalk. The cover projected, at most, from two and one-half to three inches above the surface of the surrounding dirt area. On appeal by defendant Brooklyn Edison Company, Inc., the judgment is reversed on the law and the facts, with costs against plaintiff and defendant city of New York, the plaintiff's complaint and the cross complaint of defendant city of New York are dismissed on the law, with costs. On appeal by defendant city of New York, the judgment, insofar as appealed from, is reversed on the law and the facts, with costs, and the complaint is dismissed on the law, with costs. There is no factual showing which warrants a finding that plaintiff tripped against the side of the manhole cover. ( Matter of Case, 214 N.Y. 199, 204.) In addition, the provision of the Administrative Code of the City of New York requiring construction of vault covers "flush in all parts with the sidewalk" (§ C26-230.0, subd. b, par. 2) is inapplicable. This provision, which is part of the chapter dealing with the jurisdiction of the Department of Housing and Buildings, is applicable to such openings only as are "otherwise unprovided for by law." (§ C26-221.0.) The construction of this manhole was pursuant to authorization of the Department of Water Supply, Gas and Electricity, upon consent of the President of the Borough of Brooklyn, in accordance with specific provisions of law which then and now are operative independently of the Administrative Code provisions which plaintiff invokes. (See Transportation Corporations Law, § 11; New York City Charter [1938], § 734; City of New York v. Woodhaven Gas Light Co., 181 App. Div. 188, 190, 191.) In the light of the nature of the cover, its slight projection above the level of the surrounding dirt, and the availability of an adjacent paved area of sidewalk, there was no proof of negligence in the absence of violation of the Administrative Code provision. ( Newhall v. McCann, 267 N.Y. 394. ) Close, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.