Plaintiff, while walking at night along the paved pathway of Washington Square Park, a small public park established and maintained by the City of New York, stepped into a hole and fell. For the consequent injuries suffered, suit was brought against the city; there was a verdict in plaintiff's favor. In the Appellate Term and in the Appellate Division, the city has prevailed in its contention that the complaint should be dismissed on the ground that there was no evidence that the hole was four inches in depth or that it constituted a "trap."
For the past twenty years at least, this court has declined to recognize any such principle as that urged by the city. On the contrary, we have held that there is no rule that the liability of a municipality in a case of this sort turns upon whether the hole or depression, causing the pedestrian to fall, is four inches *Page 322 — or any other number of inches — in depth or constitutes "a trap." (See, e.g., Norbury v. City of Buffalo, 246 N.Y. 605;Wilson v. Jaybro Realty Development Co., 289 N.Y. 410;Dowd v. City of Buffalo, 290 N.Y. 895; Lynch v. City ofBeacon, 295 N.Y. 872; Pratt v. Village of Seneca Falls,295 N.Y. 690.) As we but recently observed, there is no requirement that "a hole in a public thoroughfare * * * be of a particular depth before its existence can give rise to a legal liability." (Wilson v. Jaybro Realty Development Co., supra., p. 412.) A municipality's liability depends on whether or not, having in mind the circumstances of each case, it has neglected and failed to keep its public thoroughfares — whether the sidewalk of a street or the pathway in a park — in a condition reasonably safe for pedestrians.
In our view, the evidence contained in the record before us was sufficient to warrant submission of the case to the jury. The determination dismissing the complaint was, therefore, erroneous and must be reversed. Since, however, the affirmance by the Appellate Division of the Appellate Term's decision reversing the judgment of the City Court was on the law alone, the Appellate Division was not called upon to, and did not, pass upon the facts and, accordingly, we are required to remit the case to that court for determination upon any questions of fact there raised (Civ. Prac. Act, §§ 606, 626).
The judgments of the Appellate Division and of the Appellate Term should be reversed, and the case remitted to the Appellate Division for determination upon the questions of fact raised in that court, with costs to abide the event.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.
Judgments reversed, etc. *Page 323