
    Sarah Wagner, Respondent, and Sidney Wagner, Plaintiff, v. The City of New York, Appellant.
    First Department,
    March 25,1937.
    
      
      Elizabeth Rogers Horan of counsel [Frederick v.P. Bryan with her on the brief; Paul Windels, Corporation Counsel], for the appellant.
    
      St. Clair X. Heriel of counsel [Frank Booth with him on the brief], for the respondent.
   Per Curiam.

The trial court committed reversible error in admitting in evidence plaintiff’s sworn statement made before an agent of the defendant on January 20,1932, and the papers embraced in an order of the Supreme Court, Bronx county, dated September 23, 1935, transferring this case from the City Court of the City of New York, Bronx county, to the Supreme Court, and permitting plaintiff to amend her complaint asking for damages of $50,000 instead of $2,000. Both exhibits were clearly self-serving declarations.

The jury was erroneously instructed that if it could decide what the depth or shape of the hole was before the accident, it could find for the plaintiff if it wished to, regardless of what the conclusion was as to the hole’s depth or shape and its connection with the plaintiff’s fall. The trial court failed to instruct the jury that it might not speculate as to the depth of the hole or cause of the accident.

It was error to charge the jury that if the hole was ragged or had broken edges or a jagged piece, it should be considered a dangerous place and the city was liable. Bagged or broken edges of themselves do not make the hole dangerous. It is for the jury to say whether under all the circumstances described it was dangerous and whether this condition was the proximate cause of the accident.

For these reasons the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Martin, P. J., McAvoy, O’Malley, Townley and Glennon, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.  