
    Mary Sawyer, Resp’t, v. The City of Amsterdam, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 1887),
    
    1 Negligence—Municipal Cokpobation—When liable—Sidewalks A certain part of one of defendant’s sidewalks was in an unsafe and dangerous condition, there existing an abrupt break or descent of about fifteen inches, and a very steep decline. The plaintiff slipped at this place, when covered with snow and ice, and was injured. In an action for damages, Meld, That if the presence of the ice was negligence, then two concurring acts of negligence injured the plaintiff, and the defendant city being at least responsible for one of them, was liable. Bing v. City of Cohoes, 77 N. Y., 83, and Searles v. The Manhattan B. B., 101 N. Y., 661, distinguished.
    3. Same—Condition of sidewalk can be shown.
    Although the existence of the snow and ice was not alleged in the complaint, it was proper for plaintiff to show the condition of the sidewalk, and the circumstances attending plaintiff’s fall.
    Appeal by the defendant from a judgment in favor of the plaintiff entered upon the report of a referee.
    
      E. P. White, for app’lt; W. B„ Dunlap, for resp’t.
   Landon, J.

The complaint alleges that on the 24th day March, 1885, the sidewalk upon Division street, in the village of Amsterdam, near the Terwilliger block, was in an unsafe and dangerous condition; that there existed therein an abrupt break or descent of from ten to fifteen inches, and a very steep decline or grade, of which the village had notice, but negligently suffered to exist; that the plaintiff, without fault upon her part, stepped off and down the step, and thereby sustained serious injuries.

On the 16th day of April, 1885, the “act to incorporate the city of Amsterdam’” was passed, and the village thereby became a city.

By the terms of the act the city succeeded to the liabilities of the village The thirty-first section of this act provides that “all claims against the city for injuries to the person claimed to have been caused or sustained by defect, want of repair, or obstructions from snow or ice or other causes in the highways, streets, sidewalks, or crosswalks of the city shall be presented to the common council in writing within three months after such injury is received. Such writing shall describe the time, place, cause and extent of the injury, so far as then practicable.” The section also provides that “the omission to present said claim as aforesaid within three months shall be a bar to any claim or action therefor against the city.

The claim, as stated in the complaint, was presented to the common council within three months from the injury. Testimony was given by the plaintiff upon the trial tending to show the condition of the sidewalk as described in. the complaint, and also that at the time of the injury to the plaintiff there were snow and ice upon the walk at the place of the abrupt descent or step, and upon the slope below the step, and that the plaintiff slipped upon the ice and thus was injured.

The defendant objected to any evidence of the snow and ice, because it was not stated in the complaint, nor in the claim presented to the common council, and urged that the plaintiff could not recover for any injury caused by slipping upon the ice, because she had presented no such claim. The objection was overruled. It was proper to show the condition of the sidewalk, and the circumstances attending plaintiff’s fall; and hence the presence of the snow and ice and how they contributed to plaintiff’s fall were admissible.

The referee finds that the sidewalk was, and long had continuously been, covered with snow and ice, but that plaintiff’s fall was caused principally by reason of the abrupt step or descent in the walk, and the steep incline or slope at the foot of the step. The referee did not, in express, terms, find that the village was negligent in suffering the snow and ice to remain upon the sidewalk, but he refused to find that it was not negligent.

As the case stands there is no ground for the claim that the plaintiff has recovered upon a different cause of action from that which she presented.

The negligence which contributed to her injury was the defective sidewalk; no doubt the ice also contributed. If we assume that the presence of the ice was not m gligence on the part of the village, then the defective walk was the sole negligence; if the presence of the ice was negligence, then two concurring acts of negligence injured the plaintiff, and the city, being at least responsible for one of them, is liable. The learned counsel for the city cites Ring v. City of Cohoes (77 N. Y., 83), and Searles v. The Manhattan Railway Co. (101 N. Y., 661).

In the cases cited, the defendant was excused from liability because it did not appear which of two causes injured the plaintiff, and for only one of them was defendant chargeable with negligence. Here we know that the' defendant is chargeable with negligence with respect to one of the causes which did injure the plaintiff, however it may be with the other.

With respect to the alleged contributory negligence of the plaintiff, and constructive notice to the defendant of the unsafe condition of the sidewalk, the report of the referee is amply supported by the evidence.

Judgment affirmed, with costs.

Learned, P J., and Bockes, J., concur.  