#### SMITH v. CITY OF ROCHESTER.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Municipal Corporations—Defective Sidewalks—Notice to City.

Where a city charter provides that the city shall not be liable for any injury caused by a defective sidewalk unless actual notice of the defect has been given to the city officers in charge of the highways a reasonable time before the injury, evidence that one of the officers had passed over the sidewalk where the injury occurred, but did not notice the defect, is not sufficient to charge the city with notice, though the officer was negligent in not observing the defect.

Action by Florence A. Smith against the city of Rochester. A nonsuit was granted at circuit, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance

Denied.

Argued before DWIGHT, P. J., and HAIGHT, BRADLEY, and LEWIS, JJ.

Walter S. Hubbell, for plaintiff.

C. D. Kiehel, for defendant.

LEWIS, J.

This is an action to recover damages for bodily injuries sustained by the plaintiff while walking upon a sidewalk in the city of Rochester. The plaintiff claims that her injuries were caused by the sidewalk being out of repair. An abutting owner, in making some repairs, had removed the stone walk in front of his' premises. He excavated the earth underneath, and constructed a temporary sidewalk over the excavation of sufficient length and width, and in the manner that such walks are ordinarily constructed. The defect consisted in his not having spiked the planks down. They had by use become separated from each other at the time the plaintiff was injured, and, in attempting to cross over the walk, she stepped into the opening between the planks, and was-quite seriously injured. The charter of the city provided that the city should not be liable for injuries caused by defective sidewalks-unless an actual notice of the unsafe or dangerous condition thereof had been given to the city officers having charge of the highways-a reasonable time before the happening of any such injury.

This is the second time this case has been before this court upon appeal. The material facts of the case are fully stated in the-*540■opinion of Justice Macomber on former appeal. 19 N. Y. Supp. 459. We then held that a sidewalk inspector was not a city officer having ■charge of the highways of the city, and that a notice to that officer was not a sufficient notice under the provisions of the charter to charge the city. The supervision of the streets of the city is, by the charter, given to an executive board of three members, elected by the electors of the city. The members of the board are the commissioners of the highways of the city. The plaintiff, upon the second trial, attempted to prove the required notice to the executive board of the defect in the sidewalk by the testimony of Mr. Arm-, bruster. He was a member of the executive board prior to and at the time of the accident. Did the plaintiff succeed in proving the notice? It was sufficient if the defective condition of the walk was actually brought to the knowledge of Armbruster for a sufficient length of time prior to the accident to have enabled the city authorities by reasonable diligence to have remedied the defect in the walk. It must not necessarily have been a written or verbal notice. McNally v. City of Cohoes, 127 N. Y. 353, 27 N. E. 1043. Armbruster testified that he was at the time a member of the board, and that he had passed over the temporary walk on two or three occasions prior to the accident; he had observed that the proprietor of the premises had somewhat obstructed the driveway in the street, and had deposited dirt, barrels, and other articles between the temporary sidewalk and the curbing, and he gave him notice to remove these obstructions; that he did observe that there was a temporary walk over the excavation in the sidewalk, hut that he did not pay any particular attention to it, and did not notice or know that the planks had not been spiked down; that he did not see anything unusual about the walk, and had no knowledge, information, or intelligence as to its being out of order. The trial court held that the evidence failed to establish the notice required by the charter. It was not sufficient for the plaintiff to show that Mr. Armbruster was negligent in not discovering the defects, but, under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Armbruster had actual knowledge of the defect. This, we think, the evidence failed to establish, and, that being a condition to the plaintiff’s right to recover, she was properly nonsuited. The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit. All concur.