February 4, 1960
Appeal from the Monroe Trial Term.
Present — Bastow, J.P., Goldman, Halpern and McClusky, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The complaint was dismissed at the close of plaintiff's case apparently upon the ground that there had been a failure to prove compliance with an ordinance of defendant city which provided in substance that the city should not be liable and no action might be maintained against it for damages in consequence of any sidewalk being defective unless written notice thereof had been given and there was a failure to repair within a reasonable time. In our opinion questions of fact were presented that required submission of the case to a jury. It might be found that plaintiff tripped and fell by reason of respondent's negligence in causing and maintaining a dangerous condition in the sidewalk in the form of a cast-iron cover over a survey monument installed more than 40 years ago by the city. Thereby respondent was making a special use of the portion of the sidewalk where the accident occurred. An issue was thus presented as to whether the city was responsible for the creating of the defect as a special user. The provisions of the ordinance would have no applicability if it were found that the city caused and maintained the condition. (Cf. Appelbaum v. City of Long Beach, 8 A.D.2d 818; Weiser v. City of New York, 5 A.D.2d 702; Cummings v. City of Norwich, 286 App. Div. 612, 617; Crandall v. City of Amsterdam, 254 App. Div. 39.)