Rothenberg v. City of New Rochelle

285 A.D. 817 | N.Y. App. Div. | 1955

Plaintiff Anna Rothenberg recovered judgment for $700 in the City Court of the City of New Rochelle against defendants City of New Rochelle and Consolidated Edison Company of New York, Inc., for personal injuries alleged to have been sustained by a fall on a defective sidewalk. Her husband recovered a judgment for $200 for medical expenses and loss of services against the same defendants; The court dismissed the complaint is to defendants County of Westchester and New Rochelle Trust Company, and granted judgment over in favor of defendant city, on its cross complaint, against defendant Consolidated. - The court also dismissed third-party complaints served by Consolidated and New Rochelle Trust Company. On appeal by defendants city and Consolidated from the judgment of the city court insofar as it was against them, the County Court, Westchester County, affirmed the judgment, and said defendants appeal therefrom. Order of the County Court, Westchester County, reversed on the law and the facts; judgment of the City Court of the City of New Rochelle vacated insofar as it adjudges that plaintiffs recover against defendant city and Consolidated and that defendant city recover over against Consolidated; action and third-party actions severed as to all parties except the plaintiffs and defendants city and Consolidated, and a new trial ordered as to said plaintiffs and defendants; costs in all courts to abide the event. The hole in the sidewalk was the proximate cause of the happening of the accident and no proof was adduced to show that defendant Consolidated created the condition. There was no proof of notice to the defendant city, either actual or constructive, of the existence of the hole. Schmidt, Beldock and Murphy, JJ., concur; Nolan, P. J., and MacCrate, J., dissent and vote to affirm the order of the County Court, Westchester County. [See post, p. 893.]