156 N.Y.S. 860 | N.Y. App. Div. | 1916
The plaintiff tripped over a water curb box while walking along on the sidewalk of one of the public streets of the city of Schenectady. She fell and was injured. This curb box did not stand in the concrete or paved part of the walk, but was located between the curb and the concrete. The complaint alleged nuisance and the case was tried on that theory. The facts brought it squarely within Hall v. Cooper Land Company decided by this court (139 App. Div. 922) and by the Court of Appeals (203 N. Y. 587). The evidence warranted the verdict and we find nothing demanding our consideration except an irregularity in the rendition of the verdict.
After submitting the case to the jury, it being Friday afternoon, the justice who conducted the trial left the court room to go home, it being agreed by counsel that a resident justice should receive the verdict. At eight o’clock in the evening the jury reported a verdict of $700 against the defendant city and $150 against the defendants Golden. A recess was taken until the following Monday. On Monday the justice who presided at the trial returned and convened court and the following took place: “ The Court: What is the record in the last case ? The Clerk: They return and say they find for the plain
The attempt of the jury to apportion the damages was clearly beyond the scope of its duties. The jury sat only to determine whether the curb box constituted a nuisance, and whether the plaintiff tripped over it and was injured, and the extent of her damages. Any suggestion from the jury beyond this was mere surplusage and affected in no manner their verdict on the issues before them. It was proper beyond
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs; Cochrane, J., not sitting.