
    Egan, Pl’ff, v. The Forty-Second Street, Manhattanville and St. Nicholas Avenue Railway Company, Def’ts.
    
      (New York Superior Court, Special Term,
    
    
      Filed December 24, 1888.)
    
    ,1. Negligence.
    Where tlie plaintiff was injured by stepping into a hole in the street between the tracks of a surface railway company, but there was no proof that it was the duty of the company to keep the space between the tracks in repair, and no defect in the construction or maintenance of the tracks was shown, it was held that there was no cause of action, and the complaint was dismissed.
    The cases of Worster v. The Forty-Second Street Railroad Co. (50 N. Y., 203), Wasmer, adm’rx, etc., v. The Delaware, Lackawanna and Western Railroad Co. (80 N. Y., 212), and Gale v. The New York Central and Hudson River R. R. Co. (76 N. Y. 594) distinguished.
   Dugro, J.

The plaintiff moves to set aside a dismissal of -the complaint Upon trial of this action.

The evidence, as I remember it, was substantially that the plaintiff stepped into a hole in 110th street between the rails of a horse car track, and catching his foot under the wooden stringer below the iron rail of one of the tracks, fell, and broke his leg. He claims that he was not negligent and that the railroad company was so in not closing the hole, and asks for damages.

It does not appear from the evidence that it was the duty ■of the defendant to keep the space of the street between the tracks in repair. The city and not the defendant had control of this space. The defendant could not without the city’s permission exercise any precaution it might deem necessary to prevent the existence of holes in the street; and in the absence of any agreement between it and the city in regard to the matter, or any special duty imposed by law, it should not be held bound to keep the space in question in repair. No defect in the construction or maintenance of the tracks is shown.

The decision relied upon by plaintiff (50 N. Y., 203) is not .applicable to the case presented at the trial; for in the case cited, the tracks were shown to be in a defective condition. :See particularly the opinion Worster v. Forty-second Street Railroad Co. (3 Daly, 280; 80 N. Y., 212, and 76 N. Y., 594), and cases where the space between the rails was under control of the respective defendants.

Without power or authority to maintain the space between the rails in a condition to be determined by them, the defendants could not be held to an accountability for its condition, unless such condition was caused by them.

The plaintiff’s counsel refers me to section 9 of chapter 252 of the Laws of 1884, and claims by this act, the duty of keeping in repair the space of tbe street between the tracks, etc., is imposed upon defendant.

I have not considered this statute as bearing on the case, for it was not shown on the trial that the defendant was such a corporation as is referred to in the act. For this last assertion I am compelled to rely upon memory, having neither the pleadings nor the stenographer’s minutes before me.

The motion must, therefore, be denied.  