Pymm v. City of New York

Hooker, J.:

At the close of the evidence* the court dismissed the complaint on the ground that no negligence had been' shown against the city of New York on the theory that the board of education is- a separate corporation charged with the maintenance'of all school buildings and schoolhouses, and that the city of New York is not responsible for the acts of the educational department.

The evidence offered upon the trial tended to show that tin the 4th day of February, 1902,.the plaintiff, accompanied by her husband, - slipped and fell on ice which had accumulated on North Fifth street, near Driggs avenue,, in the borough of Brooklyn. The sidewalk was built of flagstone. The place where the accident occur *331 red was in front of property used and occupied by the board of education for school purposes. The place where the plaintiff fell was directly in front of a water closet in the school yard, which had been either in improper repair, of faulty construction, or misused, so that for some weeks or months prior to the accident water had flowed with greater or less frequency and in more or less volume over the sidewalk, forming a plate of ice, somewhat irregular in outline, and about an inch thick at its deepest part. The plaintiff said that she had not seen any ice at all as she was coming along, and that the sidewalk was clear of ice as she remembered it. She slipped and fell, however, on this accumulation of ice, and suffered a simple fracture of both bones about two inches above the ankle joint of the right leg. There is evidence tending to show that this same ice had been accumulating for two weeks back, and probably more. In warmer weather water flowed directly across the sidewalk ; in freezing weather it took the foTm of ice. It was stipulated that this district was patrolled.

There can be no doubt that the board of education of the city of Hew York is a corporation independent of the municipal corporation itself, the city of Hew York. (Gunnison v. Board of Education, 176 N. Y. 11 .) But this fact cannot be considered as a premise even remotely connected with the conclusion that the defendant is liable in this case. The revised charter (Laws' of 1901, chap. 466, § 1055 et seq. as amd.), gives to the board large powers, and imposes on it many duties and > obligations; but the charter will be searched in vain to find any suggestion that the city of Hew York itself was to be relieved from the duty it owed to pedestrians properly to maintain the public highways and sidewalks. It is alleged in the complaint, and not denied, that at the time of the accident the defendant was a municipal corporation, having control of Horth Fifth street at or near Driggs avenue, both of which are public highways in the borough of Brooklyn. It was said in Hutson v. City of New York, ( 9 N. Y. 162, 168 ): “ It requires no argument to prove that it, is thé duty of the defendants to see that the public streets of this densely crowded city are kept in repair, for, where a public body is clothed by statute with power to do an act which concerns the public interests, the execution of the. power ’may be insisted on as a duty.” (See, also, Conrad v. Trustees of the Village of Ithaca, *332 16 N. Y. 158 ; Weet v. Trustees of the Village of Brockport, Id. 161 ; Congreve v. Smith, 18 id. 79; Davenport v. Ruckman, 37 id. 568.)

The evidence tended to show that the plaintiff was free from contributory -negligence; that the city had liad constructive notice of the dangerous condition of tlie sidewalk, and that it was negligent -in permitting the condition which had. existed to remain uncorrected,, and because this, negligence was primarily imputable to the defendant, -the city-of New York,, and because that liability has not- been limited by-statute,, the case should have been -submitted to the jury.

The judgment and -order .appealed from should,- therefore, be reversed, and -a new trial granted. ■ - -

Hirsghberg,' P. J., Woodward and Jenks, JJ., concurred.

Judgment and order reversed, and new trial granted, costs to abide the event.