
    McGinity v. The Mayor of New York, &c.
    In an action against a city municipal incorporation, to recover damages, sustained in consequence of a grating over an area in a sidewalk being in a defective or unsafe condition, it is not enough to entitle the plaintiff to recover, to prove that the covering was insecurely fastened at the time of the accident, and that by reason thereof, and without fault on his part, he was injured. Notice to the defendant of the defect, or negligence of duty, in not ascertaining, and remedying it, must be shown.
    At Special Teem,
    June 4, 1856.
    The action was brought to recover damages for personal injuries sustained by the plaintiff, in consequence of the neglect of the defendants, in not keeping a sidewalk in Prince street in proper repair. It appeared, upon the trial, that in December, 1854, the plaintiff was walking, in the evening, on a sidewalk in Prince street, and, in consequence of a grating, covering a vault, on which he had stepped, giving way or turning over, fell through, and was seriously injured. Upon examination, it was found that a chain which had secured the grate was broken, but from what cause, or how long before the accident, did not appear. The jury gave a verdict for the plaintiff for $1,000 damages.
   Duer, J.,

held, that the plaintiff was bound to show affirmatively, that there had been a neglect of duty Tpy the corporation, and that this was not shown merely by proving that the grate was insufficiently fastened at the time of the accident. There was no reason to believe, from the evidence, that the grate was improperly constructed, or that the defendants had any notice, or were chargeable with knowledge of its defective state. The chain might have been broken by an act of violence, which, for ought that appeared, may have been committed only a short time before the plaintiff was injured. The verdict, therefore, was not sustained by the proof that the plaintiff was bound to give, and must be set aside.

Mew trial granted, upon payment of costs.  