FOSTER v. CITY OF NEW YORK, 6 N.Y.2d 852 (1959)

160 N.E.2d 90, 188 N.Y.S.2d 557

WILLIAM FOSTER, Appellant, v. CITY OF NEW YORK, Respondent, et al., Defendants.

Court of Appeals of the State of New York.Argued March 10, 1959
Decided May 29, 1959

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, SAMUEL C. COLEMAN, J.

Page 853

Bernard Meyerson and Seymour Epstein for appellant.

Charles H. Tenney, Corporation Counsel (John A. Murray an Seymour B. Quel of counsel), for respondent.

Judgment reversed and a new trial granted, with costs to abide the event, upon the ground that plaintiff established a prima facie case in negligence. No opinion.

Concur: Chief Judge CONWAY and Judges DYE, FULD and FROESSEL. Judges DESMOND, VAN VOORHIS and BURKE dissent and vote to affirm upon the ground that the undisputed proof as to the physical facts, including photographs submitted by both parties, established that the depression in the sidewalk was too slight to constitute a trap.

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