
    Frances Chepiga and Michael Chepiga, Plaintiffs, v. Pauline Engel and Others, Defendants.
    Supreme Court, Trial Term, New York County,
    January 9, 1942.
    
      Lind & Marks, for the plaintiffs.
    
      E. Q. Sherwood, for the defendant Pauline EngeL
   Koch, J.

On February 14, 1940, at about eight a. m., the plaintiff Frances Chepiga was walking along East Seventy-first street, in the borough of Manhattan, and was passing premises 316 East Seventy-first street. The weather was bad and the street slippery, and as the plaintiff was passing said premises she slipped, and in endeavoring to save herself threw out her hand, on one finger of which she wore two rings. Her action resulted in the finger upon which she wore the rings coming in contact with the top of an iron picket in the fence in front of said premises and catching thereon, causing injuries which resulted in the loss of a portion of said finger.

The premises in question are built on the building line with the stoop projecting five or six feet and the fence in question runs along in front of the building beyond the building line at about the same distance therefrom. It is conceded that this condition of the premises had existed for about forty-seven years and that no accidents were known to have occurred as a result thereof-during that period. There is no order of any municipal authority directing that the fence be removed.

It must be presumed that the fence was constructed and maintained with the consent of the public authorities and though extending beyond the building line did' not constitute an unlawful or illegal use of the street. This being so it cannot be said that the presence of the fence constituted a concurrent proximate cause of the injury. The proximate cause was the falling on the slippery pavement. Therefore, the plaintiff has failed to make out a cause of action and judgment is directed for the defendants dismissing the complaint, with costs.  