In re the Hornell City Court Clerk , 5 A.D.2d 1053 ( 1958 )

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to- abide the event. Memorandum: Plaintiff has received an award for damages for personal injuries received when she fell on a claimed icy driveway upon premises owned by the defendant. The amended complaint and bill of particulars alleged that the agents of the defendant had actual knowledge and notice of the condition of the driveway. The record, however, is barren of any evidence that any officer or agent of defendant had actual notice of the claimed condition of the driveway. The charge of the trial court was confusing and ambiguous. The jury was first told that a recovery could be had upon a finding that the defendant had actual or constructive notice of the condition. At the conclusion of the charge the jury was instructed that there must be a finding that defendant had actual knowledge of the condition. In response to a request this instruction was repeated. In the light of the amended complaint this latter instruction was correct but we find no evidence that justified submitting this issue to the jury or permitted the jury to make such a finding. There was a complete failure of proof as to actual knowledge. It is unnecessary to pass upon the question as to the sufficiency of the evidence upon the issue of constructive notice. All concur. (Appeal from a judgment of Erie County Court for plaintiff in a. negligence action. The order denied a motion for a new trial.)

Present — McCurn, P. J., Kimball, Williams, Bastow and Goldman, JJ.