89 N.Y.S. 618 | N.Y. App. Div. | 1904
Upon a former appeal in this case (75 App. Div. 271, 276) the rule' laid down in the case of Jewhurst v. City of Syracuse (108
Upon this latter point we think the evidence is sufficient to support the judgment. There was evidence that the streets in that vicinity were largely used, and that this stump had remained exposed in this manner for a long time, although it was shown that it had been guarded more or less by a telephone pole and a post up to within a few weeks of the happening of the accident. We think, however, in view of all the circumstances, that it was a question for the jury, and their determination ought not to be disturbed.
We think the objection that the judgment is larger than the amount of the claim as originally filed under the provisions of sections 26 and 192 of the charter (Laws of 1896, chap. 425, as amd. by Laws of 1898, chap. 232) is without substantial merit and that it ought not to be allowed to defeat the plaintiff’s recovery. (Eggleston v. Town of Chautauqua, 90 App. Div. 314, 317, and authority there cited.)
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.