| N.Y. App. Div. | Nov 4, 1940
In an action to recover damages for injuries sustained by plaintiff wife as the result of a fall upon an alleged defective sidewalk and by her husband for expenses and loss of services, judgment in favor of plaintiffs and against defendants affirmed, with costs to plaintiffs. Order denying motion of appellant Incorporated Village of Mount Kisco, New York, for judgment over and against appellant-respondent Young and Halstead Company affirmed, with costs to said appellant-respondent. There is no competent proof as to the time when and the circumstances under which the trough alongside the abutting owner’s shed and the drains leading therefrom were constructed, nor by whom. The sidewalk condition was used for a two-fold purpose. On behalf of the village it served to carry off water and dirt running onto the sidewalk from Quaker Hill road and elsewhere. The abutting owner used it to carry off rain water from its roof, the edge of which overhung the sidewalk. Independently of each other the defendants utilized the drain in question and are charged with its maintenance. Lazansky, P. J., Hagarty and Johnston, JJ., concur; Adel and Close, JJ., concur, except as to affirmance of the judgment against defendant Young and Halstead Company, and as to that defendant vote to reverse the judgment and to dismiss the complaint, with the following memorandum: There is no proof in the record to show that defendant Young and Halstead Company constructed the gutter or drain or that this drain was constructed for its sole benefit. In the absence of such proof it cannot be cast in liability. (Restatement, Torts, § 350.)