I concur in the opinion of Mr. Justice Ingraham that the judgment should 'be affirmed. . I do not agree with him, however, that -the evidence would not have justified a finding that the pile of stones in the street, or some part of it, was placed there prior to the day preceding the- accident, or that the judgment could not be affirmed if defendant’s liability depended upon, the negligent performance of the usual obligations . imposed upon a municipality. On the contrary, I think the evidence would have justified a finding that'the obstruction in the street had existed for several days ■ and that the'city had either actual or constructive notice of it, and, therefore, was obligated either to remove or see the same was properly guarded.
I aeree with him that a notice, eithe. actual or constructive, was *368not necessary inasmuch as the city had by its .permit authorized the contractor to- pile; the stone where it was, but if such notice were necessary, then there was an abundance of evidence to go to the jury on that subject.
Hatch, J., concurred.
Judgment and order affirmed, with costs. -