Baccale v. City of New York , 1 A.D.2d 1018 ( 1956 )

Action by respondent Mary Baccale to recover damages for personal injuries and by her husband for medical expenses and loss of services. While said respondent was proceeding on an unpaved portion of a public sidewalk, in front of premises owned and controlled by appellant Birkland, her foot was caught and held in a drain outlet, and she was caused to fall and to sustain the injuries complained of. The drain outlet had been placed in the sidewalk by appellant Birkland for the special use and benefit of his property. Appellant City of New York cross-claimed for judgment over against said property owner. After trial by the court without a jury, judgment was directed in favor of respondent Mary Baccale for $24,000 and in favor of respondent Anthony Baccale for $4,500 against the city and the property owner, and in favor of the city on its cross claim against the property owner. The property owner appeals from the judgment entered thereon. The city appeals from said judgment insofar as it is in favor of said respondents. Judgment, insofar as it is in favor of respondent Mary Baccale against appellants and insofar as said judgment is in favor of the city on its cross claim to the extent of the recovery of said respondent, reversed, action severed, and new trial granted, with costs to abide the event, unless said respondent, within 20 days after the entry of the order hereon, stipulate to reduce the award in her favor to $17,500, in which event the judgment, insofar as it is in favor of said respondent and in favor of the city on its cross claim, as so reduced, is affirmed, without costs. In our opinion, the award in favor of respondent Mary Baccale is excessive. Wenzel, Beldock and Ughetta, ,JJ., concur; Nolan, P. J., and Hallinan, J., dissent and vote to affirm the judgment insofar as it is in favor of respondent Mary Baccale and insofar as it is in favor of the city on its cross claim to the extent of the recovery of said respondent. Judgment, insofar as it is in favor of respondent Anthony Baccale against appellants and insofar as said judgment is in favor of the city on its cross claim to the extent of the recovery of said respondent, unanimously affirmed, with costs to said respondent, payable by appellants, and tp the city, payable by appellant Birkjand, No opinion.