
    Harry A. O’Rourke, Appellant, v. Salvatore Castagnola and Rose Castagnola, Respondents.
   Action to recover damages for personal injuries sustained by plaintiff when he tripped and fell over a barrier consisting of low wooden stakes, connected by a wire, alleged to have been unlawfully maintained by defendants in a public street. Judgment reversed on the law and the facts and a new trial granted, costs to abide the event, on the ground that the court erred in refusing to charge the jury, as requested by plaintiff’s counsel, that the encroachment was a nuisance as a matter of law; that the exclusion of the photographs constituted prejudicial error, and that the determination is against the weight of the evidence. Young and Tompkins, JJ., concur; Lazansky, P. J., and Hagarty, J., concur upon the ground that the determination is against the weight of the evidence, even if it be assumed it was a question of fact as to the existence of a nuisance; Davis, J., dissents and votes to affirm, with the following memorandum: I cannot agree that these stakes and wires inclosing a grass plot between the sidewalk and the building constituted a nuisance in law. There was a clear and unobstructed pathway for travel along this concrete sidewalk, and it would be only on a very unusual occasion that these stakes and wires would interfere in any degree with free and unrestricted passage over the sidewalk. These stakes and wires might have constituted a nuisance in fact. That question has twice been submitted to juries and they have found for the defendants. The exclusion of the photographs from the evidence was error; but it was not prejudicial to any substantial right of plaintiff. The existing situation had been described by witnesses, and the photographs would largely have been cumulative evidence.  