Second Department, May, 1908. [Vol. 126. case was clearly insufficient, and the determination under review must be annulled, with costs. WOODWARD, JENKS and GAYNOR, JJ., concurred; MILLER, J., concurred on the ground that there was no evidence that the relator gained entrance to the platform by exhibition of the gilt shield. Determination reversed, with costs, and relator reinstated, with fifty dollars costs and disbursements. HENRY STADELMANN, Respondent, v. THE CITY OF NEW YORK, Appellant. Second Department, May 1, 1908. Municipal corporation - negligence - failure to establish sidewalk. A city which has cut a highway through a hill in a sparsely-settled district is not negligent in failing to establish a sidewalk on the top of a bank from four to seven feet high, and is not liable for the injuries of a pedestrian who, while walking along the bank at night, fell into a slight depression. A municipality opening a roadway or the bed of a highway is not liable for failing to build sidewalks simultaneously. APPEAL by the defendant, The City of New York, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 7th day of June, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 5th day of June, 1907, denying the defendant's motion for a new trial made upon the minutes. Royal E. T. Riggs [Theodore Connoly and Francis K. Pendleton with him on the brief], for the appellant. George V. S. Williams [John E. Walker with him on the brief], for the respondent. One of the issues in this case is whether or not the place where the plaintiff was injured was a public highway, and hence whether there was any obligation on the part of the defendant to keep the same in reasonably safe condition for travel. The learned trial App. Div.] Second Department, May, 1908. court submitted this question to the jury as one of fact. The jury found the fact in the plaintiff's favor, and from a judgment entered upon its verdict the defendant has appealed to this court. The locality was sparsely settled; there had been a road or way in existence for about ten years prior to the accident, which had been used by vehicles and pedestrians during that length of time, mainly, however, by those who lived in the region, or others who attempted to reach such abodes or adjacent places of business; water and gas pipes, but no sewer, had been buried underneath the general line of way; there was a fire hydrant along the way, and the city had erected granite monuments to mark the so-called street; it was not curbed, guttered or lighted; the place had not been much used as a highway until after the summer of 1904, when the highway department sent men and wagons to improve the condition there, level it off and fill up holes and rough places; these workmen cut off a part of a hilly place, and for about two hundred feet made a cut through the brow of the hill of sufficient width for a highway, and between four and seven feet deep at the deepest part; at the completion of this work the bed of the highway was left in condition for travel either by vehicles or pedestrians. On a very dark night in January, 1905, the plaintiff undertook to use the top of the bank at one side of the cut as a sidewalk, and walking there, fell into a transverse ditch about a foot wide and between twelve and eighteen inches deep, sustaining the injuries of which he complains. The city had done nothing to improve the condition of the top of the bank; no sidewalk had been laid out or built there, and the surface of the ground was rough and in a condition due to nature and to the work which had been done on the roadway or street. The plaintiff claims that by reason of the longcontinued user and its nature, and by reason of the dominion which the city had exercised in making its repairs, it had adopted the place as a public highway and had invited the public to use it as such; and that, hence, the duty attached to maintain it in a reasonably safe condition for travel. Conceding this to be so as to the bed of the highway or the portion thereof between the sides of the cut, but not deciding the point, it does not follow that the city is liable for its neglect to build a sidewalk on the top of the bank or to APP. DIV.-VOL. CXXVI 23 Second Department, May, 1908. [Vol. 126. place the same or leave it in a safe condition for use by pedestrians. No one would claim that a town in a rural county would be liable for its failure to build and maintain a sidewalk beside a country road. At the place where the plaintiff was injured there was nothing to indicate that a sidewalk had ever existed there or that it was ever the intention of the city to maintain one. It is the experience of the race that improvement of every character, both municipal and otherwise, is of necessity gradual in accomplishment. Time was when there were no buildings near this so-called street, and, hence, no reason for the existence of the thoroughfare at all; there was nothing in the surrounding circumstances which demanded that the city should maintain a sidewalk at this place. The jury should not have been allowed to predicate negligence upon the fail ure of the city to furnish one where the plaintiff was injured. We may concede that the work which the city did on the body of the highway was sufficient to invite its use, but not so on the top of the bank where the plaintiff met his accident. It must be taken as a sound rule that the physical opening of the roadway or bed of a highway by a municipality does not render the municipality liable for its failure to build sidewalks simultaneously. There was nothing in the general circumstances of the locality and nothing in the physical condition of the sides of the roadway which might be construed by any one as indicating a sidewalk for the travel of pedestrians. The conclusion must be that the plaintiff should be held to have used it for just what it appeared to be, namely, ground in more or less rough condition at the sides of a highway whose bed afforded safe means for travel. The case is not like Jewhurst v. City of Syracuse (108 N. Y. 303). In that case there was no visible boundary of the line of the city street, and nothing to induce the belief in any one passing there and exercising reasonable care that he was not within the line thereof; there the sidewalk consisted of two strips of twelve-inch plank laid lengthwise of the street one foot apart, one strip within and one without the limits of the street, and the plaintiff was injured by the breaking of the plank which was without. Here there was not only nothing to indicate that the place where the plaintiff was walking was part of the street, but on the other hand the presence of the embankment itself was some indication that App. Div.] Second Department, May, 1908. the place for travel was at the bottom instead of the top of the embankment. In Schafer v. Mayor (154 N. Y. 466), what had been done upon the street was somewhat similar to the work the defendant had performed in this case; there the city had left the cover of a manhole projecting about five inches above the surface of that part of the roadway which was intended for vehicles to travel over; the conveyance of plaintiff's intestate came in contact with the manhole, he was thrown out and killed. The case might be like the one at bar had the plaintiff here come in contact with some obstruction at the bottom of the bank, but he did not. Our conclusion is that negligence on the part of the defendant was not established, and the judgment should be reversed and a new trial granted, costs to abide the event. JENKS, GAYNOR, RICH and MILLER, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event. ERNST SMITH, Appellant, v. EMELIE C. STORK and REBA TYLER JACKSON, as Administratrix, etc., of SUSAN M. VAN NAMEE, Deceased, Respondents. Second Department, May 1, 1908. Trial - verdict against weight of evidence - dismissal on merits. Where a verdict for the plaintiff is against the weight of evidence, the trial court should not dismiss the complaint upon the merits, but should order a new trial conditioned upon payment of costs. APPEAL by the plaintiff, Ernst Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of December, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the 20th day of December, 1906, setting aside the verdict of a jury in favor of the plaintiff and Second Department, May, 1908. [Vol. 126. against the defendant Jackson, and directing the dismissal of the complaint upon the merits. John T. Fenlon [John V. Judge with him on the brief], for the appellant. Robert Stewart, for the respondents. HOOKER, J.: Plaintiff invites the review of an order granted by the learned trial court dismissing his complaint after a verdict in his favor. From the opinion it would seem that two reasons were assigned for interfering with the verdict of the jury one, that there was no evidence from which the jury were warranted in finding that the attorney was authorized to act for the defendants; the other was that the verdict was against the weight of evidence. If there was any evidence to present to the jury the complaint should not have been dismissed, and the order may be sustained with the modification that the verdict was against the weight of the evidence. The jury were justified in finding that defendants and plaintiff were parties defendant in an action brought by the Farmers' Loan and Trust Company against them and others to determine the ownership of a fund then in the custody of the plaintiff in that action; that this plaintiff through his attorney called on the defendant Jackson, relative to an adjustment of the claim of plaintiff and said Jackson to said fund, and that she, said Jackson, referred plaintiff's agent to one Hartman, who in turn sent him to Robert Stewart, her attorney; that afterwards plaintiff's attorney Fenlon took up the matter of said adjustment or settlement with said Robert Stewart by correspondence and personal interviews, with the result that said Stewart's client was to receive $2,000 of said fund, and from said amount of $2,000 plaintiff was to be paid $450; and this action is brought to recover the latter sum. Many circumstances corroborating these facts developed on behalf of the plaintiff. The defendants offered evidence from which the jury would have been warranted in determining the issue in defendants' favor. The trial court, having seen all of the witnesses and considered fully the evidence, was of the opinion that the verdict ought not to stand because the weight of the evidence was with the defendants. The most it should have |