Frank J. Farrell, Respondent, v. The City of New York, Appellant

Frank J. Farrell, Respondent, v. The City of New York, Appellant. Second Department, June 22, 1906. Uegligence — injury by caving in of street — absence of notice of defect — no duty to-inspect properly constructed highway. A city is not liable for injuries received by one driving a wagon caused by the caving in of the street above a sewer when there was no surface indication of any defect, and the municipality had no notice, actual or constructive, of any . defect in tbe sewer beneath, A municipality is under no duty to inspect a highway to discover a possible defect if the highway was properly constructed. All that is required is reasonable care. Hooker, J., dissented. • Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the comity of Queens on the 2d day of December, 190.5, upon the verdict of a jury for $250, and also from an order entered. in paid cleric’s office on -the 29th day of November, 1905, ■ denying the defendant’s motion for a new trial made upon the minutes. . James D. Bell [John E. Walker and John J. Delany with him on the brief], for the appellant. Fred Ingraham, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff, driving a one-hoi'se delivery wagon on Myrtle avenue,'Flushing, was injured by his-horse falling into a hole and throwing him from the'wagon. It appears that it had been raining ■a few days prior to the accident and that the surface of the street had nothing to indicate that there- was any defect. But. when the horse reached the .point where the accident occurred the surface caved in, showing a cavity as large as a barrel. There was some evidence that there had been other cave-ins along the. sewer in this highway,.and that the ,authorities had filled them up as soon as they were discovered, and. we fail to see how the city could be charged with negligence Ayhere there, was no notice, actual or constructive, that a defect existed. The court charged that there was no evidence of any defect in the sexver to cause the cave-in, and' the law does not impose the burden of inspection to discover a possible defect in a highway Avhere the same has been properly constructed.- All that™ is' required is reasonable care, and we are of .opinion that the evidence failed to shoiv a lack of such cafe on the part of the defendant.' . - The judgment and order appealed from should be reversed. Jenks, Gaynor, and Rich, J J., concurred ; Hooker, J., dissented Judgment and order reversed and 'new trial granted, costs to abide the event. *