Clemmons v. Cominskey , 1 A.D.2d 933 ( 1956 )

Judgment and order reversed on the law, with costs and complaint dismissed, with costs. We have examined the facts and find no error therein. Memorandum: In determining whether an alleged sidewalk defect is unsafe, the same standard or measuring stick should be applied in making that determination, whether the defendant be a property owner or a municipality. Of course, in determining the liability of a municipality, actual or constructive notice of the alleged unsafe condition must be established before liability can be imposed. In the case of an abutting property owner where it appears that the alleged defect is of his own creation or he comes within the specific benefit rule, the question of notice is no problem. In the instant case, it is our feeling that the alleged defect is not of such a character as to impose liability, or of such a nature that a reasonably careful and prudent person should have foreseen the probability of injury to users of the walk from its existence. All concur, except McCurn, P. J., and Williams, J., who dissent and vote for affirmance on the ground that a question of fact was presented and properly determined. (Appeal from a judgment of Oneida County Court for plaintiff against defendant 400 Columbia Street Corporation in a negligence action. The order denies a motion for a new trial.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Williams, JJ.