Mildred Panella, Respondent, v. Trustees of St. Patrick's Cathedral, Appellant, 20 A.D.2d 660

In an action to recover damages for personal injury allegedly caused by defendant’s negligence, the defendant appeals from an order of the Supreme Court, Queens County, dated February 15, 1963, which denied its motion, made upon the jury’s disagreement after trial, for a directed verdict, pursuant to

section 457-a of the former Civil Practice Act. Order reversed on the law, with costs; defendant’s motion for a directed verdict in its favor granted; and complaint dismissed. The proof does not present any issue of fact, and no such issue was considered. Plaintiff testified that she was caused to fall by the existence of a heap of sweepings, dirt, pebbles and stones, alongside a grave she was visiting at defendant’s cemetery; and that there were men working in the area. There was no evidence as to how the heap originated.

While it might be inferred that it was created by the men working in the area, there is no evidence connecting these men with the defendant. Nor is there any evidence of actual notice; and the only evidence of constructive notice is that the condition had existed, before plaintiff’s fall, for a period of an hour or an hour and a half. In our opinion, the evidence of constructive notice was insufficient, as a matter of law, to form a basis for submission of the case to the jury. Beldock, P. J., Kleinfeld, Brennan, Hill and Hopkins, JJ., concur.