Opinion
July 8, 1937.
In an action to recover for personal injuries, the complaint charges that the defendant constructed and maintained a dangerous road intersection in that the pathway provided for automobile travel was of wave-line contour and caused the automobile in which plaintiff wife was riding to be jolted to such an extent that said plaintiff was thrown against the ceiling of the automobile. The husband sues for loss of services. Plaintiffs had separate judgments and the trial court denied defendant's motions for a new trial. The appeal is from the judgments and orders. Judgments and orders affirmed, with costs in each case. No opinion. Carswell, Taylor and Close, JJ., concur; Lazansky, P.J., and Adel, J., dissent and vote for reversal and a new trial upon the ground that the verdicts are against the weight of the evidence as to negligence and contributory negligence. Furthermore, in our opinion the county is not liable where it acts erroneously while acting in a quasi-judicial capacity. This street was paved upwards of ten years before the accident and used continuously. No fault is found with the maintenance or repair thereof. ( Urquhart v. City of Ogdensburg, 91 N.Y. 67.) A street in a county is presumed to be constructed according to a plan and on a grade established by proper local authorities. ( Owen v. City of New York, 141 App. Div. 217.)