#### Mary Ann Kelly, Respondent, *v.*The City of New York and The Brooklyn Alcatraz Asphalt Company, Appellants.

Second Department,

December 30, 1908.

Municipal corporation—negligence — defective sidewalk—charge.

Where a jury has been instructed that a municipality is not liable for personal injuries if caused by a condition of the street or sidewalk from which danger was not reasonably to be apprehended, it is not error to refuse to charge that if the jury find the difference in height between Belgian block and its foundation was not greater than three inches the city is not liable, for the jury were entitled to determine the liability of the defendant on the facts shown under the rule charged.

Jenks and Gaynor, JJ., dissented.

*659Appeal by the defendants, The City of New York and another, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of March, 1908, upon the verdict of a jury for $1,500, and also from separate orders entered in said clerk’s office on the 9th and 11 tli days of March, 1908, respectively, denying the defendants’ motions for a new trial made upon the minutes.

*James D. Bell [James W. Covert*and *Francis K. Pendleton*with him on the brief], for the appellant The City of New York.

*William L. Kiefer [Frank V. Johnson*with him on the brief], for the appellant asphalt company.

*Frederick S. Martyn [William J. Pape*with him on the brief], for the respondent.

Rich, J.:

This appeal is from a judgment in favor of the plaintiff in an action for negligence. The appellants contend, *first,*that there was no proof of negligence sufficient to warrant a recovery, and, *second,*that there was no proof of plaintiff’s freedom from contributory negligence, and an alleged error of the trial justice in refusing to charge a request.

There was sufficient evidence to warrant the court in submitting to the jury the question of negligence of both the defendants. The case at bar is not within the rule declared in *Butler*v. *Village of Oxford*(186 N. Y. 444); *Hamilton*v. *City of Buffalo*(173 id. 72); *Beltz*v. *City of Yonkers*(148 id. 67) and similar cases cited by the appellants. The same distinguishing features exist that were pointed out in *Corr*v. *City of New York,*(121 App. Div. 578).

Defendants requested the court to charge that *“*if the jury find that the difference in height between the Belgian block and the foundation was not greater than three inches this was not such a condition as would render the city liable for negligence,” which was refused. The jury had been instructed that if the accident happened by reason of some condition of the street or sidewalk from which danger was not reasonably to be apprehended, and which according to common experience was not likely to happen in such *660a case, the city was not liable. The question was whether the condition was such that danger was reasonably to be apprehended, which must be determined by the facts proven. I think the learned trial justice properly refused to charge as requested. He left it to the jury to say whether or not the facts established the liability of the defendants under the rules of law laid down for their guidance, and in doing this he was clearly right.

The judgment and orders should be affirmed, with costs.

Hooker and Miller, JJ., concurred; Jenks and Gaynor, JJ., dissented.

Judgment and orders affirmed, with costs.