274 A.D. 915 | N.Y. App. Div. | 1948
Insofar as concerns defendant George Roll, the abutting property owner, there is no evidence that he was an active tort-feasor in causing the piece of ice on which plaintiff testified that he slipped to be present on the sidewalk (Kelly v. Rose, 291 N. Y. 611; Hendley v. Daw Drug Co., 293 N. Y. 790). Neither do we consider that the condition of the sidewalk under all the facts of the case constituted evidence of negligence on the part of defendant the City of New York (Reutlinger v. City of New York, 281 N. Y. 592; Kirsch v. City of New York, 289 N. Y. 684; Foley v. City of New York, 95 App. Div. 374.) The facts in this record sufficiently differentiate this ease from Green v. Rosenberg, Inc. (295 N. Y. 584). Judgment unanimously reversed and the complaint dismissed, with costs to both defendants. Present — Peek, P. J., Dore, Cohn. Van Voorhis and Shientag, JJ.