
    Charles Stone, Resp’t, v. The City of Troy, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 21, 1891.)
    
    Negligence—Improper condition op a gutter in a street.
    A gutter in a city street was when originally constructed eight feet wide on top, eighteen inches deep, and its sides gradually sloped .from the top to the centre line of the bottom. At a time when the plaintiff was injured by driving into it, it had, through the breaking away of rock, become upon one side perpendicular, with a direct fall of eight inches, and its depth generally had increased to two feet. This state of affairs had existed eight months. Held, that a recovery against the city was proper.
    Appeal from a judgment, entered upon a verdict of the jury upon the trial at the Rensselaer circuit.
    
      William J. Roche, for app'lt; John P. Kelly, for resp’t.
   Landon, J.

We reversed a judgment in favor of the plaintiff upon the former appeal, because we thought the evidence was conclusive that the street gutter was in good condition. 21 N. Y. State Rep., 639. Upon the second trial, which now comes before us, the evidence on the part of the plaintiff tended to show that the gutter was in fact defective, and had long been so. The gutter was on the south side of Middleburgh street, in the city of Troy, and across Eighth street, at its intersection with Middleburgh. It was a “ basket” gutter, carved in the natural rock, and was for the passage of surface water.

It was originally properly constructed, eight feet wide on top, eighteen inches deep, and gradually sloping down from the top on each side to the center line at the bottom. The testimony tended to show that the rock had so broken on the south side as to form a perpendicular wall eight inches high, and that the plaintiff while sitting in his wagon, driving his team of horses down hill around the corner from Middleburgh into Eighth street, the intersection being on a hill side, was thrown from bis wagon and injured, because the wheel on the down hill side sank in the depression next to the solid wall, while the wheel on the opposite side mounted the elevation.

The disputed questions of fact were for the jury, and we see no errors of law requiring a reversal.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  