The opinion
McLaughlin, J.
(dissenting). When the respondent left the trench in December preceding the accident it was in a safe condition not only for pedestrians but for public travel generally. An inspector of streets for the city of Buffalo testified that he then inspected the trench and that the work had been performed by the respondent in the usual way and that there was nothing for him to criticize or order changed; that there were no depressions or holes left in the street, and, in fact, that the trench had been filled and smoothed over in the way in which similar work was and for years had been done by all the asphalt companies in the city of Buffalo; that it could not have been repaved at that time of the year on account of the cold weather. The character of the depression, including the length, width and depth of it, would not, under numerous decisions of this court, have made the city hable
(Horan
v.
Hastorf,
223 N. Y. 490 ;
Lalor
v.
City of New York,
208 N. Y. 431 ;
Hamilton
v.
City of Buffalo,
173 N. Y. 72 ;
Beltz
v.
City of Yonkers,
148 N. Y. 67 ;
Butler
v.
Village of Oxford,
186 N. Y. 444 ;
Terry
v.
Village of Perry,
199 N. Y. 79 ), and no greater obligation was imposed upon the contractor, the respondent, than there was upon the city.
(Schmidt
v.
City of New York,
179 App. Div. 671 ; affd., 228 N. Y. 573 ;
Fithian
v.
Degnon Cont. Co.,
175 App. Div. 386 .)
But if it be assumed that the respondent might have been subjected to liability, it could only be so because
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it had either actual or constructive notice of the defect. No proof whatever was offered to justify a finding that the respondent, prior to the accident, had either actual or constructive notice. The accident occurred at a place where there was much travel, and it is significant that not a single witness was produced who testified as to how long the depression had existed or that, prior to the accident, it was known to exist at all. No proof was offered to show what caused the depression, whether the elements, heavy vehicles or other causes. The plaintiff Grace Brown, who was familiar with the location and, it is fairly to be inferred, had been over the same spot several times before, did not, prior to the time she was hurt, know of the existence of the depression. She testified that she never, prior to that time, saw it.
The respondent, having left the trench in good condition the preceding December, could not be held liable for a defect in it unless the plaintiff proved that it had actual notice of such defect or that it had existed for such a length of time that in law it was bound to take constructive notice of the same. There was no such proof offered, and for that reason the complaints were properly dismissed.
I, therefore, dissent from the decisions about to be made and vote to affirm the judgments.
Hiscock, Ch. J., Hogan and Cardozo, JJ., concur with Crane, J.; McLaughlin, J., reads dissenting opinion, with whom Andrews, J., concurs; Pound, J., not voting.
Judgments reversed, etc.