
    Catherine A. West, Appellant, Respondent, v. Powers-Kennedy Contracting Corporation, Respondent, Appellant.
    First Department,
    May 29, 1930.
    
      Paul J, McCauley of counsel [Philip J. O’Brien, attorney], for the plaintiff.
    
      F. A. W. Ireland of counsel [Ireland & Caverly, attorneys], for the defendant.
   Per Curiam.

Plaintiff had a verdict in a personal injury action, which was set aside by the trial justice. The hole in the roadway causative of the accident was found by the jury to have been created and maintained negligently by the defendant. No notice to defendant of that condition was required. There was evidence showing that the planking and hole, in which her foot caught, were in substantially the same condition as when created by defendant. There was ample proof of liability. Consequently the order setting aside the verdict on the ground that the finding of defendant’s liability was against the weight of the evidence, may not be sustained.

The learned trial justice, also, deemed the verdict excessive. We agree with his determination that a new trial should be ordered on that ground.

Upon the plaintiff’s appeal, the order should be affirmed, with costs to the defendant.

Defendant’s appeal from the same order should be dismissed.

Present — Dowling, P. J., Merrell, Martin, O’Malley and Sherman, JJ.

Upon plaintiff’s appeal, order affirmed, with costs to the defendant; defendant’s appeal dismissed.  