#### WILLIAM HARRIGAN, Appellant, *v.*THE CITY OF BROOKLYN, Respondent.

*Liability of a municipality for a defect in a street*— opening *in the curb, not on the sidewalk or m’oss-walk.*

A municipality is not liable for an injury suffered by a pedestrian crossing a street in tbe nigbt-time, caused by bis stepping into an opening some four inches wide at tbe top and three inches deep between tbe ends of two curb-stones, not on tbe sidewalk or at tbe termination of a cross-walk, which opening bad been made to .carry away water from tbe street, in a prudent exercise of tbe power of tbe municipality to make its streets and walks dry for tbe use of tbe public.

Appeal by tbe plaintiff, William Harrigan, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Kings county on tbe 26th day of August, 1892, on tbe dismissal of tbe complaint at tbe close, of tbe plaintiff’s evidence on a trial at circuit, and from an order, entered in said office on tbe 3d of September, 1892, denying tbe plaintiff’s motion for a new trial on tbe minutes, in an action brought to recover damages arising from personal injuries sustained by tbe plaintiff in a public street of tbe defendant, tbe City of Brooklyn.

*James C. Church,*for tbe appellant.

*Al/met F. Jenks,*for tbe respondent.

BakNAed, P. J.:

Hicks street is one of tbe public streets m tbe city of Brooklyn. Tbe street was graded and paved by tbe city, including tbe sidewalks, in 1860. Tbe street was paved with cobble-stones, and there was a good, unflagged sidewalk two or three inches below the top of tbe curb-stone level. On the 21st of July, 1888, about twelve o’clock at night, the plaintiff crossed Hicks street on tbe cross-walk, until be discovered a puddle of water, and be stepped aside, some three feet, to avoid tbe water. When be reached tbe sidewalk he put his foot upon tbe curb-stone, and there was an open space there some four inches at the top, and slanted down likp a wide-shaped Y where tbe curbs bad not come together. Tbe plaintiff put bis foot in tbe Y-shaped opening in tbe curb-line, fell and broke bis leg. The opening in the stone was not'at the termination of the cross-walk, *86and bad been made to carry the water from the street, which otherwise lay stagnant there, into the lot that carried the water away. There was no proof of negligence upon the part of the city. The case does not resemble *Clemence*v. *City of Auburn*(66 N. Y., 334). In that case a sidewalk was constructed on two grades. They were connected by a stone at a slope of six inches in about three and a half feet. The result was, a person was injured by stepping in the incline covered by a light snow. Neither is it like the case of *Goodfellow*v. *The Mayor*(100 N. Y., 15). There, a cross-walk was supposed to continue where a stone in it had one corner on a level with the grade and the opposite corner, eight inches below the level. The court held this case proper to go to the jury. The present case does not refer either to sidewalk or cross-walk. It was a failure to bring the top of the curbs close, and for a good reason. It was the duty of the city to free the street and walks from water, and this small aperture in the curb-line, four inches wide and some three inches deep, and not on the sidewalk and not on the cross-walkj but detached some feet therefrom, was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.