
    Celia Cohen, Appellant, v. The City of New York, Respondent.
    Second Department,
    May 5, 1911.
    Municipal corporation — negligence —injury on defective highway— failure to guard highway after notice of defect — erroneous nonsuit.
    Where the complaint in an action against a city to recover for personal' injuries caused by a defect in a highway charges, not merely that the municipality failed in the proper maintenance of the road, but also was negligent in guarding the defect after notice of its existence, it is error to dismiss the complaint if it was for the jury to say whether the city had notice sufficient to enable it to give warning of the defect, even though the municipality had no time to repair the highway after said notice.
    Jerks, P. J., and Burr, J., dissented.
    Appeal by the plaintiff, Celia Cohen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of March, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Abraham C. Cohen [Michael H. Harris with, him on the brief], for the appellant.
    
      James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent.
   Thomas, J.:

The action is to recover for personal injuries caused by a defect in a road in Prospect Park, whereby a carriage was upset. The defect was caused by a rain of unusual severity. The accident occurred between twelve and one o’clock in the daytime on October 9, 1903. On the morning of that day the policeman at that point had telephoned the police station that the road was in bad condition, and during the morning the officer had warned oncoming carriages, but neglected to warn the one in question, as he was at lunch in the gate box. He says,’ I had to be alert.for fear anybody would come through.” The nature of the defect and his appreciation thereof are indicated in his testimony. • Between the time of the notice given by the officer and the time of the accident, there was not an opportunity to repair the road, and if the complaint, as -the court apprehended, relates merely to proper maintenance, the dismissal would be correct. The court failed to notice that in addition to the allegation of. negligence in the matter of maintenance, there is a charge that defendant was negligent in the matt&r of guarding the place and giving plaintiff notice or warning of the unsafe condition. I consider that the jury should have determined whether the city had received such timely notice as to enable it to make provision for protecting or warning travelers against the defect! •

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

. Hirschberg and Carr, JJ., concurred; Jenks, P. J., and Burr, J., dissented.

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