Celestine Beatrice and Angelo Beatrice, Appellants, v. The City of New York and Jackson Construction Corporation, Respondents

Celestine Beatrice and Angelo Beatrice, Appellants, v. The City of New York and Jackson Construction Corporation, Respondents. First Department, June 19, 1940. Desmond T. Barry of counsel [Edward A. Shandell with him on the brief; Levy, Galotta & Corcoran, attorneys], for the appellants. Wm. Mason Smith, Jr., of counsel [Paxton Blair with him on the brief; William C. Chanler, Corporation Counsel], for the respondent The City of New York. John F. Bowden of counsel [Hobart R. Marvin, attorney], for the respondent Jackson Construction Corporation. [MAJORITY — Per Curiam.] Per Curiam. The plaintiff wife was not guilty of contributory negligence as matter of law in failing to observe the towing handle of the concrete mixer under the circumstances of the present case. The jury could have found that there was no reason to anticipate such an obstruction on a boardwalk which had been opened to the public. According to the plaintiff’s evidence the towing handle remained across the boardwalk for a period of three hours before the accident. There was evidence, also, that several park attendants who were in a position to have observed this condition failed to take action to protect the public against the danger. Upon these facts the jury would have been justified in holding the city to be Hable. We think the complaint was properly dismissed against the defendant Jackson Construction Corporation upon the ground that it affirmatively appeared from the plaintiff’s case that its employee had left the towing handle in an upright position when last he had ceased work. The judgment in favor of the city of New York should be reversed and a new trial granted, with costs to the appellants to abide the event, the action severed and judgment dismissing the complaint as against the defendant Jackson Construction Corporation affirmed, with costs to said defendant. Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm the judgment as entered. Judgment in favor of the city of New York reversed and a new trial ordered, with costs to the appellants to abide the event, the action severed and judgment dismissing the complaint as against the defendant Jackson Construction Corporation affirmed, with costs to said defendant.