#### John M. Quinn, an Infant, by His Guardian ad Litem, John Quinn, Respondent, *v.*The City of New York, Appellant.

First Department,

June 2, 1911.

Municipal corporation — negligence — highway — defective footpath, in outlying district — evidence — repair subsequent to accident.

A municipality by annexing outlying territory does not assume the obligation to at once put the footpaths along the roads in as good condition for travel as are sidewalks in the main part of the city.

Where in an action against the city of- New York to recover for injuries to a boy nine years of age who tripped over a root in a footpath beside a street in an outlying district, which had been annexed to the city ten years previous, it appears that the path had never been graded, paved or curbed; that most people used the street at that point, and that plaintiff was familiar with the path and with the fact that it was full of roots, it is error to submit the question of the city’s negligence to the .jury.

The defect in the path was not of such dimensions and character as to make an accident probable.

It is error in such ease to receive evidence that after the accident the city repaired the street where the plaintiff fell.

Appeal by tbe 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 county of New York on the 16th day of June, 1910,‘upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

*Loyal Leale,*for the appellant.

*Frank Henvig,*for the respondent.

McLaughlin, J. :

The plaintiff, about four o’clock in the afternoon on the 18th of July, 19.08, while running along a path which extended by the side of Twentieth street between Seventh and Eighth ave-, núes at Whitestone, in the borough of Queens, was thrown to the ground by his foot coming in contact with a root which *196extended1 across the path and fractured a bone in one of his arms. This action was brought to recover the damages alleged to have been sustained on the ground that the same were due to the city’s negligence. He had a verdict, upon which judgment was entered, and the defendant appeals from it and an order denying *a*motion for a- new trial.

Whitestone was annexed to and became-a part of the city of New York on January. 1, 1898. The path where the accident occurred was of dirt and it had never been graded, paved or curbed in any way. On one side of it was a row of trees and on the other a hedge. It was at most in a very crude condition, one of plaintiff’s witnesses -testifying that instead of going upon it he walked in the middle of the street and that is what most of the people did there. At the time the plaintiff was injured he was nearly nine years of age, and, so ■ far as appears, was as intelligent as the ordinary boy of that age. It was a clear day and he was entirely familiar with the condition of the path, having passed over it each day for several years. He had previously seen the root and knew where it was located. He testified: “I had passed over it a good many times before. The sidewalk' there was mostly all' full of roots. It was a dirt sidewalk.” The path at most was a temporary one which , travelers used for their own • convenience, most of them going instead in the middle of the street. Such paths are not uncom- • mon in outlying districts and the city, by annexing that terri- . tory, did not assume an obligation to at once put the path in as good condition for public travel as sidewalks in the main part of the city. Such a defect in the path as the plaintiff complains of might, as in this case, result in an accident, but it was nota defect of such dimensions or character as to make an accident probable. *(Henry*v. *City of New York,*119 App. Div. 432.)

I am of the opinion that the evidence did not show such defect in the path as to justify a submission to the jury of the question of defendant’s negligence, and if it did, then the same evidence establishes the plaintiff’s own negligence and the complaint should have been dismissed at the close of plaintiff’s case or at the conclusion of the .whole case a verdict directed for defendant.

The judgment must also be reversed for an error committed *197in the admission of evidence. One of plaintiff’s witnesses was permitted to testify, against defendant’s objection and exception, that between the time plaintiff was injured and the. following September repairs were made to the street by filling in, at the place where the plaintiff fell. Such evidence in this class of cases has so frequently been condemned it is hardly necessary to cite authorities, but see *Mackey*v. *City of New York*(121 App. Div. 473).

The judgment and order appealed from, therefore, must he reversed and a new trial ordered, with costs to appellant to abide event.

INGRAHAM, P. J., Laughlin, Clarke and Sgott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.