
    Mary Dever, Respondent, v. Brooklyn Edison Company, Inc., and The City of New York, Appellants.
   Action for personal injuries sustained by plaintiff when she fell on a sidewalk on the east side of Ralph avenue, south of Fulton street, in Brooklyn, by reason of a defect therein. On appeal by defendant city of New York, judgment unanimously affirmed, with costs. No opinion. On appeal by defendant Brooklyn Edison Company, Inc., judgment reversed on the law, with costs, and complaint dismissed, with costs. The burden was upon plaintiff to show that the defective condition complained of resulted from the negligence of this defendant (Cunningham v. Dady, 191 N. Y. 152) and we are of opinion that that burden was not sustained by her. The accident occurred seventeen months after this defendant had completed its work and plaintiff’s own witness Zinser testified that the recemented condition looked all right to him. The only photograph showing a defective condition at about the place of the removal of the pole by this defendant was taken after the accident at a time when a construction company was engaged in a nearby subway project and had utilized welding machines to lay a gas pipe along the curbline directly in front of the defective place. The photograph shows a cracked sidewalk area far greater in extent than that which could have been caused by the removal of defendant’s pole. It is also established by one of the city’s photographs, taken five months after defendant Edison Company had completed its work, that the sidewalk was in a reasonably safe condition. Further, there is proof that prior to the accident, and after the taking of the photograph which shows the sidewalk to be in a dangerous condition, the defective place had been dug out by children and more than once refilled. Under the circumstances, the finding that this condition was due to negligence was based on sheer conjecture. Appeal by defendant Brooklyn Edison Company, Inc., from order denying its motion for a new trial dismissed. There is no such order in the record. Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.  