In an action to recover damages for personal injuries sustained by plaintiff in a fall on a sidewalk in the city of New York, claimed by her to have been caused by a difference in level between two flagstones of about two and one-half inches, judgment in favor of plaintiff affirmed, with costs, on the authority of Loughran v. City of New York ( 298 N.Y. 320).
Carswell, Acting P.J., Wenzel and MacCrate, JJ., concur; Adel and Sneed, JJ., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum:
No actionable negligence on the part of defendant was proved. The cases of Wilson v. Jaybro Realty Development Co. ( 289 N.Y. 410) and Loughran v. City of New York ( 298 N.Y. 320) presented instances of holes in sidewalk or footpath pavement resulting from failure to properly maintain such sidewalk or path. The Court of Appeals consistently has held that a slight difference in elevation of adjoining slabs or flagstones of a sidewalk does not of itself present actionable negligence on the part of the municipality. ( Lynch v. City of Beacon, 295 N.Y. 872; Dowd v. City of Buffalo, 290 N.Y. 895.) In this climate, where walks are subject to heaving by frost, that rule is entirely reasonable, and should here be applied in the absence of any proof of negligence upon the part of the municipality.