
    Mary Romanowski, Respondent, v. The City of Tonawanda, Appellant.
    Fourth Department,
    July 7, 1908.
    Municipal corporation — negligence—injury, to pedestrian oil village street — effect of subsequent incorporation as city — sufficiency of notice — constructive notice.
    Where after an accident to a pedestrian caused by an alleged defect in a village street and after action brought the village incorporates as a city the rights of the parties are to be determined under the Village Law.
    A notice that the accident occurred at a point in the sidéwalk of a designated street at a short distance from a certain cross street is not too indefinite, although the accident in fact occurred 228 feet from the cross street designated and only 96 feet from the next cross street, where the complaint served within six months states the place of the accident to be between the two cross streets.
    Evidence in an action brought to recover from a municipality for injuries received by a pedestrian who tripped over a loose board in the sidewalk examined, and held, insufficiSht to charge the defendant with constructive notice that the sidewalk was in a defective condition and needed reuair.
    A village is not bound to keep its sidewalks in an absolutely safe condition, but only to use reasonable care.
    Kruse, J., concurred upon the second ground only.
    Appeal by the defendant, The City of Tonawanda, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 16th day of December, 1907, upon the verdict of a jury for $1,480, and also from an order entered in said clerk’s office on the 16th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      John K. White and Ray M. Stanley, for the appellant.
    
      Harrington & Premus and W. B. Simson, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action is to recover damages for personal injuries alleged to have resulted from defendant’s negligence.

The plaintiff received her injuries in a fall upon a sidewalk. Her daughter, who was. walking with her at the time, stepped on a loose planlc in the sidewalk; it tipped up, caught plaintiff’s foot and she fell. The boards lay crossways of the walk. Plaintiff was sixty-one years old. The jury rendered a verdict for $1,480 damages.

The defendant was a village when the accident occurred, November 12, 1902, and when the action was brought February 19, 1903. It was incorporated as a city March '9, 1903, by chapter 22 of the laws of that year, which, with the exception of the electoral provisions, took effect on March 23,1903, at noon.. (See tit. 27, § 16.) TlTe rights of the parties are to be determined under the provisions of the Village Law in force prior to the incorporation as the city.

One reason given here for the reversal of the judgment is that there was a substantial failure to comply with section 322 of the Village Law (Laws of 1897, chap. 414) as to the verified statement required to be filed with the village clerk within six months after the injuries were received, and the defect alleged was as to the place of the accident. It. was in the statement said to have occurred at A point in the sidewalk on the East side of Delaware Street, a short distance from Eremont Street.” This was a street crossing Delaware. The next cross street north was Benton and the next one south was Scott, each about 324 feet distant from Fremont street. The statement did not say whether the place was north or south of Fremont street, but merely a short distance therefrom. The complaint stated the place was between Fremont and Benton streets and this was served within the six months. The accident in fact occurred between those two streets 228 feet from Fremont and only 96 feet from Benton. The notice was rather indefinite, but supplemented by the complaint it must be held sufficient under the recent decision of the Court of Appeals. (Beyer v. City of North Tonawanda, 183 N. Y. 338.)

Another reason for reversal urged-is that.the verdict so far'as it charged the defendant with negligence in failing to discover the walk was defective and repairing it was contrary to the evidence. That the board oyer which the plaintiff fell' was loose at the time of the accidenkmay be regarded as sufficiently established by proof of the accident itself given by the plaintiff and her daughter, but how long, if at all, it had .been loose prior to that time was not satis-' factorily shown. The. plaintiff spoke of the walk only as she saw it after she fell, and she finally admitted that all she knew about the condition was what her daughter told her. It was dark at the time. The daughter testified the plank was loose and the stringers rotten.' She did not look at the place after that for three weeks or so, and she. did not see the stringers then because the board had been replaced.' She did not observe any loose plank before the accident. The son gave evidence as to the condition of the wralk. He neyer saw any plank out until after his mother fell, and he said he made no particular examination of the walk before the accident, but noticed the planks were loose and walk would settle as he walked over it.' Seven' witnesses were sworn for the defendant as to the condition of the walk. Without reciting the same or any of; it, if may be said, generally, that it showed no such defective condition as to charge the defendant with constructive notice that it was in a defective condition and needed repairs. The defendant was not hound to keep its walks in an absolutely safe condition, but only to use reasonable care in that regard.

We think the evidence taken altogether failed to establish actionable negligence on the part of the defendant, and that the jury should not have liejd the defendant liable.

All concurred ■; Kruse, J., upon second ground stated in the opinion only-

judgment and order reversed and new trial ordered, with costs to appellant to abide event upon questions of law and fact.  