110 N.Y.S. 129 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff was obstructing the street for the purpose of vending his wares. It cannot be doubted that that was an unlawful encroachment upon the street, for it was not in any sense a legiti
The complaint was properly dismissed, and the judgment should be affirmed.
Woodward and Jenks, JJ., concurred ; Gaynor, J., read for reversal, with whom Hooker, J., concurred.
Dissenting Opinion
This action is brought to recover damages caused by the defendant’s wagon being run into the plaintiff in the street. The plaintiff is a push-cart peddler. He was standing at his push-cart, which Avas by the curb in the roadway, showing his wares to a customer when the defendant’s horse and wagon, unobserved by the plaintiff, Avas driven into the push-cart by the driver, turning it over and injuring the plaintiff. The learned trial judge dismissed the case at the close of the plaintiff’s evidence.
The judgment should be reversed.
Hooker, J., concurred.
Judgment affirmed, with costs.