| N.Y. App. Div. | Jan 26, 1948
In an action to recover damages for personal injuries sustained in falling over an upheaved portion of sidewalk, judgment in: favor of plaintiff affirmed, with costs. No opinion. Lewis, P. J., Carswell, Adel and Sneed, JJ., concur; Wenzel, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The accident, which happened on September 23, 1944, was one of the sequel® of the hurricane of September 14, 1944. In the . nine days between the storm and the happening of the accident the city used all the facilities of the park department, highway department, and emergency squad of the police department to remedy the havoc of the unprecedented storm. It had its regular functions to carry on, but I think the record shows that the city did what could be done within practical limitations. It is suggested that the city might have placed a lantern as a warning of the defect in the sidewalk. The storm which felled the tree, causing this condition, also brought down miles of electric wiring and left this and many other streets in darkness. Oil lanterns are an anachronism in this age and, while the city has and uses some to mark highway repairs and construction, I do not consider it reasonable to expect it to conjure up the number it would have taken to mark every dangerous spot in the city. There were 13,500 trees down on the streets of Queens County alone. The city is required to use reasonable dispatch in the repair of a dangerous condition of which it has notice. It did so.