
    Alexander Morency, Appellant, v. The Village of Hudson Falls, Respondent.
    Third Department,
    November 10, 1915.
    Municipal corporations — negligence — fall of limb from tree on village street — notice.
    Where, in an action against a village to recover damages for personal injuries caused by a falling limb which broke from a tree on a village street, it appears that the limb broke because of the fall of another-limb which was filled with dry rot and had no leaves or branches Or twigs upon it, it is for the jury to say whether the condition of the limb was such as to give notice to the village, in the exercise of reasonable inspection, of the condition so as to charge it with negligence in failing to cut off the limb before it caused injury to pedestrians.
    Kellogg and Howard, JJ., dissented.
    
      Appeal by the plaintiff, Alexander Morency, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 21st day of September, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.
    
      Bratt & Van Wormer [Fred A. Bratt of counsel], for the appellant.
    
      A. N. Richards [Willoughby L. Sawyer of counsel], for the respondent.
   Smith, P. J.:

Upon the 1st day of March, 1914, plaintiff, while passing along Elm street in the defendant village, was injured by the fall of a branch of a tree which stood in the street. He brings this action against the village, claiming that the village was negligent in not having discovered the fact that this branch was rotten and not having removed the same. Upon the trial, after the production of the evidence for the plaintiff, the court granted a nonsuit, and of this nonsuit the plaintiff here complains.

It is alleged in the complaint that the defendant owed the duty of reasonable care to those passing along the street to guard them from injury occurring from rotten branches of trees situated in the street. This duty is admitted in the answer. The nonsuit was granted apparently upon the ground that the defendant had no notice of this defective condition of this branch for a sufficient time to impose upon it the duty to remove the same. From the evidence it appears that this branch broke from the tree at the trunk; that it was filled with dry rot; that it had no leaves or branches or twigs upon it; where it fell the bark was so dry that it fell off. It was not this branch that injured the plaintiff, but the falling of this branch broke another branch, which fell down and caused the injury of which plaintiff complains. This accident occurred in March, when snow was upon the ground and some snow was upon the trees. Whether the condition of this branch was such as to put the defendant upon notice and require an inspection in the exercise of reasonable care, would seem to be a question for the jury to decide. A branch, although with bark upon it, which has no twigs and no branches, might be held by the jury to have been in such a condition as to give notice to the village, in the exercise of reasonable inspection, that such branch was rotten, and should be cut down before it caused injury to passersby upon the street. The question was one of fact, and we think the judge was not authorized to decide, as matter of law, that there was no such condition as would give constructive notice to the city.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Kellogg and Howard, JJ., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  