Theresa Dempsey, Respondent, v. Frederick Eberspacher, Appellant

Theresa Dempsey, Respondent, v. Frederick Eberspacher, Appellant. Second Department, March 12, 1909. Tort — action to recover value of broken window — contributory ■ negligence. A landowner who maintains a trap door, projecting an inch above the surface of the sidewalk, is not entitled to recover the value of a plate glass window broken by a pedestrian who tripped over the obstruction. Appeal by the defendant, Frederick Eberspacher, from a judgment of the Municipal Court of the city of Flew York in favor of the plaintiff, rendered on the 26th day of April, 1905, in an action for damages occasioned in consequence of the defendant’s falling through a plate glass window in front of plaintiff’s premises. • Frederick, W. Clifford, for the appellant. J. Harry Tiernan, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The Municipal Court justice has found that the breaking was caused by the. defendant’s negligence. The plaintiff, at the time of the accident, maintained in front of her premises a board walk three or four feet wide, in which there was a trap door opening from the sidewalk into the cellar. Directly in front of this walk ivas a. dilapidated stone walk five or six feet wide between the curb and the board walk. The trap door had been out of repair, and did not close properly, for some time prior to the accident, which occurred by defendant’s tripping over a projection thereof, which was about an inch higher than the surface of the walk. The evidence discloses that this trap door was wrongfully maintained in a dangerous condition by the plaintiff, and she should not be permitted to recover for the consequences of her own wrongful act. The judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event. Woodward, Jenks, Gaynor and Milleb, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.