
    Frank Saumby, by Guardian, Resp’t, v. The City of Rochester, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    Municipal corporations—Negligence.
    Plaintiff just at dusk in the evening, and while his attention was attracted by a crowd of people, stepped into a manhole of a sewer between the sidewalk and curb, which had' been left open, and sustained personal injuries. Held, that a finding of negligence on the part of the city, and of freedom from negligence on the part of plaintiff, was warranted.
    Appeal from judgment of Monroe county court, entered on a verdict in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.
    
      Abraham Benedict, for app’lt; P. Chamberlain, Jr., for resp't.
   Bradley, J.

The plaintiff sustained a personal injury by stepping into a manhole of a lateral sewer on the east side of Chatham street and near the corner of that and Holland street in the city of Rochester. He charges that the injury was occasioned by the negligence of the defendant, in that the hole was permitted to remain uncovered. This injury occurred just at dusk in the evening of August 5, 1890, when the attention of the plaintiff was attracted by a crowd of people in the street; he stepped from the sidewalk into the manhole which was between the sidewalk and the curb. The conclusion was -warranted from the evidence that the manhole was left open that evening; that the defendant was chargeable with negligence in that respect; and that the plaintiff’s injury was the consequence of that negligence and was caused without any negligence on his part.

The question of the sufficiency of the notice of claim is raised by the defendant’s counsel.

Upon that subject it appears that the plaintiff’s claim was presented to the .common council upwards of forty days before the action was commenced; and that in due time notice of intention to commence it, etc., was filed with the city attorney. The notice of claim in its statement, presentation and service was a substantial compliance with the statute. Laws 1890, chapter 561, § 18.

The evidence presented questions of fact for the consideration of the jury, and was sufficient to fairly permit inferences in support of all that was essential to the recovery of the plaintiff.

Hone of the exceptions to the refusal to charge as requested, were well taken. The court had fully charged the jury upon the-matters for their consideration, and submitted to them the question of fact arising upon the evidence. There was no error in any of the rulings on the trial.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concur.  