
    James D. Fessenden, Appellant, v. The City of New York, Respondent, Impleaded with Another.
    
      Negligence — municipal corporations — hole in pavement — when plaintiff cannot recover for injury alleged to have been caused by fall occasioned by his stepping into hole in pavement.
    
    
      Fessenden v. City of New York, 206 App. Div. 753, affirmed.
    (Submitted November 22, 1923;
    decided December 27, 1923.)
    Appeal from a judgment, entered July 18, 1923, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while crossing Lexington avenue at Seventy-eighth street in the city of New York shortly after eight o’clock in the evening of a December day stepped into a hole in the pavement and falling received the injuries complained of. The Appellate Division dismissed the complaint upon the ground that the evidence disclosed no actionable negligence on the part of the defendant.
    
      Herman Aaron and James D. Fessenden for appellant.
    
      George P. Nicholson, Corporation Counsel (John F. O’Brien, Elliot S. Benedict and David C. Broderick of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  