
    Josephine Kalas, Appellant, v. Consolidated Telegraph and Electrical Subway Company, Respondent.
    (Argued April 9, 1925;
    decided May 5, 1925.)
    
      Negligence — streets — excavation by defendant in street' — not liable for accident to plaintiff where excavation was filled in and street left in safe condition.
    
    
      Kalas v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, affirmed.
    Appeal from a judgment, entered January 26, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department,, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Defendant, acting under a permit to open a street in the city of New York, made an excavation therein and thereafter refilled the trench and replaced the paving blocks. Thereafter a paving company, which had a contract with the city for maintenance of the pavement on that street, removed the paving blocks and part of the fill for the purpose of asphalting the street. Plaintiff, while crossing the street, stepped on to the filled trench, her foot went into a hole, she fell and received the injuries complained of. The Appellate Division held on the evidence that, if the street was in the dangerous condition described by the plaintiff and her witness, it was made so by the paving company and not as a result of any act or omission on the part of the defendant’s employees.
    
      O. H. Droege for appellant.
    
      Charles I. Taylor and Thomas H. Beardsley for respondent,
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., CArdozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.  