Opinion
June 30, 1961
Appeal from the Monroe Trial Term.
Present — Williams, P.J., Goldman, Halpern, McClusky and Henry, JJ.
Judgment and order affirmed, without costs of this appeal to any party. Memorandum: In our opinion there is no proof in the record of any negligence whatsoever on the part of the defendants.
We think that there was a question of fact requiring submission of the case to the jury. Section 62 (a) of the Municipal Code of the City of Rochester provided that "such covering should at all times be kept in repair and free from holes or depressions". The ordinance imposed on the defendants a higher duty of care than that resting upon the city as to sidewalks generally ( Newhall v. McCann, 267 N.Y. 394). The evidence as to the condition of the trapdoor covering warranted a finding that the ordinance had been violated. This was sufficient to require submission of the case to the jury ( Newhall v. McCann, supra). Furthermore, even apart from the ordinance, there was sufficient evidence of negligence to require submission of the case to the jury. The duty resting upon an abutting property owner with respect to a portion of the sidewalk which is constructed in a special manner for his special use and benefit is higher than that of the city with respect to sidewalks generally. (Cf. Gibson v. Jaystone Drug Co., 267 App. Div. 201; Nickelsburg v. City of New York, 263 App. Div. 625; 31 A.L.R. 2d 1334, 1350).