Joseph Rubinow, Respondent, v. Charles W. Delahunt, Appellant

Joseph Rubinow, Respondent, v. Charles W. Delahunt, Appellant. [MAJORITY] In an action to recover for personal injuries, based upon a claim that a public tennis court upon which the plaintiff was playing was maintained in a negligent condition by reason of the fact that the surface was very hard and pebbles one-half to three-quarters of an inch in diameter were allowed to remain thereon after notice to the defendant, the plaintiff has been awarded judgment. Judgment reversed on the law and the facts, with costs, motion to dismiss the complaint granted, and complaint dismissed, with costs. We find that the place where the plaintiff fell was back of the service line, a distance of more than twenty feet back of the net. The presence or absence of pebbles within three to six feet of the net becomes immaterial because the evidence establishes that the plaintiff did not fall where the plaintiff and his witnesses testified the pebbles were, but fell where he conceded there were no pebbles. Lazansky, P. J., Davis, Adel, Taylor and Close, JJ., concur.