Bertilaccio v. City of New York , 269 A.D. 902 ( 1945 )

Action to recover damages for personal injuries suffered by plaintiff wife when she slipped and fell on an icy step of a stairway leading to defendant’s railway platform; and by her husband for expenses and loss of services. Judgment, entered on the verdict of a jury in favor of plaintiffs, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. Plaintiffs failed to establish negligence on the part of the defendant in that there was no proof of actual or constructive notice of the condition of the step. In our opinion the decision in McGuire v. Interborough Rapid Transit Co. (104 App. Div. 105) is inapplicable. Hagarty, Acting P. J., Adel, Lewis, and Aldrich, JJ., concur; Johnston, J., dissents and votes to affirm.