
    Abraham Vanderborg, Respondent, v. The City of New York, Appellant.
    Second Department,
    July 25, 1913.
    Municipal corporation — negligence — when city not liable for permitting slight depression in sidewalk — erroneous refusal to charge.
    Where upon the trial of an action for personal injuries resulting from stepping into a hole in the sidewalk, it appeared from measurements that the depression was but two and one-quarter inches deep or less, it was reversible error for the court to refuse to charge that “if the jury finds that this depression between the sidewalk and the dirt space did not exceed three inches in depth and the plaintiff fell, assuming that he did fall by simply putting his foot into a depression three inches in depth and so received his injury, the city is not liable,” and a judgment in favor of the plaintiff should be reversed.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of December, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 13th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      James D. Bell [P. E. Callahan and Archibald R. Watson with him on the brief], for the appellant.
    
      Adolph Feldblum [Frank F. Davis with him on the brief], for the respondent.
   Jerks, P. J.:

The court refused, under exception by the defendant, to charge, “if the jury finds that this depression between the sidewalk and the dirt space did not exceed three inches in depth and the plaintiff fell, assuming that he did fall by simply putting his foot into a depression three inches in depth and so received his injury, the city is not liable.” I think that the exception was well taken and is fatal to the judgment. The plaintiff, a man 46 years old, testifies that about 7 P. M. of November 7, 1910, when walking on a flagstone sidewalk of a street in the borough of Brooklyn, city of New York, he suddenly put his foot into a hole pretty near the center of the sidewalk and went down, or, in his own words, “ I felt my foot go down and I fell. * * * I don’t know anything further about what caused me to fall other than that I felt my foot go down on something, and then I fell.” There is no proof of any former accidents at this point. The proof presented by the defendant, that the depression was but 2¼ inches deep or less, was not the estimate of mere eye-inspection or of guess or surmise, but was the result of measurements or calculation. In Lalor v. City of New York (208 N. Y. 431, 433) Collin, J., writing for the Court of Appeals, says: “ There are no circumstances revealed by the evidence which lessen or mitigate the effect of our decisions as authority that as matter of law the existence of the hole, as described by the witness, did not charge the defendant with negligence. (Hamilton v. City of Buffalo, 173 N. Y. 72; Beltz v. City of Yonkers, 148 N. Y. 67; Butler v. Village of Oxford, 186 N. Y. 444; Terry v. Village of Perry, 199 N. Y. 79.)” Examination of these cases cited shows that the depression in Hamilton’s case was about 4 inches in depth; that in Beltz’s case the hole caused by a break in the flagstone was 2½ inches in depth; that in Butler’s case the surface of one walk was higher than that of the other by from 2½ inches at the center to 5 inches at the edge, and that in Terry’s case the difference in grade was of an inch to inches. The depth of the hole in Lalor’s Case (supra), as determined by the credible evidence, was 4 inches.

The limit named in the request in the case at bar is certainly within that in Lalor’s case, in Hamilton’s case, within the variance in Butler’s case, and but exceeds that in Beltz’s case by ½ of an inch. While it is declared in Terry’s case that “ Each case must stand upon its own peculiar facts,” yet if I read the opinion in Lalor’s case right, that case and the cases cited supra are instances where the size or extent of the hole in each case was not sufficient in law to charge the respective defendants on the principle that the defects were so slight as not to bring home negligence to the various municipalities.

In Lalor’s case, Collin, J., as we have read, says that “ There are no circumstances revealed * * * which lessen or mitigate the effect of our decisions,” which he cites, i. e., Hamilton’s case and the other cases that follow in citation ut supra. Are there such circumstances in the case at bar ? The character of such circumstances is not indicated in the opinion of the learned judge, but we have indication in the opinion in Terry’s Case (supra), in that there are therein enumerated certain cases of exception. But none of such exceptional cases is analogous to the case at bar, save perhaps Gastel v. City of New York (194 N. Y. 15), which, however, was placed expressly within the exceptions because there was proof of other accidents, not as notice of the defect but as indication of the danger of the defect. But in the case at bar the plaintiff, when walking in the evening of the day, fell into the depression or hole, as did Butler, Terry and Beltz respectively. In Hamilton’s case the accident happened in the daytime.

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

Burr, Thomas, Stapleton and Putnam, JJ., concurred.

Judgment and order * reversed and new trial granted, costs to abide the event.  