On a previous trial of this action the jury found a verdict in favor of the plaintiff. On appeal to this court the judgment was reversed on the ground that the evidence did not support the cause of action set forth in the complaint. The case was sent back for a new trial, and this has resulted in a second verdict of the jury for the plaintiff, which on motion has been set aside as contrary to law, appeal coming to this court from the order as well as'from the judgment entered upon such order.
Upon the first trial the evidence did not point out clearly where the accident occurred. The complaint alleged tliat it occurred by reason of a dangerous condition of the crosswalk, while the evidence seemed to indicate that the plaintiff slipped upon the curb and fell upon the crosswalk. It also appeared from the evidence on the previous trial that the fall of snow which apparently produced the accident was of very recent date, bringing the case within the rule laid down in Taylor v. City of Yonkers (105 N. Y. 202) in the opinion of the court, notwithstanding that it appeared that the city of New York, by its own rules, had laid down a higher degree of care for the crosswalks in the locality of this accident than that held tó be necessary in the case cited. On the last trial the evidence was clear that the plaintiff slipped upon ice which had been permitted to accumulate upon this crosswalk, where the defendant had assumed the duty of immediate removal of snow, and there was evidence from which the jury might properly have found that the icy condition of this sidewalk was not due to the fall of snow of less than two inches, light and of little conse*271quenco, just before the accident, but that it dated back a period of some two weeks, when there was a fall of five or six inches of snow, ' and which alone could have produced ice of the thickness that was testified to. by some of the witnesses. The learned trial court reserved decision on a motion to nonsuit, and sent the case to the jury upon a charge which was certainly fair to the defendant, and upon the jury finding in favor of the plaintiff, on motion set the ' verdict aside. It may be conceded that this is a close case, but if it is true, and the jury have so found, presumptively, that this icy and dangerous condition of the crosswalk was due to the snow Tall of two weeks prior to the accident, then the conditions were such as to call upon the defendant to act, and while there is evidence in the case tending to show that the defendant did act, that it had its men on hand, properly equipped to do the work of cleaning these crosswalks, yet- the evidence is, sufficient to warrant the jury in concluding that this work was not properly done, under all the surround- ing circumstances, and that the defendant was negligent in the discharge. of a duty which it had voluntarily assumed toward this plaintiff and others lawfully making use of this crosswalk. - The case, as pointed out on the previous appeal, in a dissenting opinion, is hardly parallel with the Taylor case, and the defendant having had the advantage of two trials, it would seem proper that the verdict of the jury in this case should be sustained.
The order and judgment appealed from should be reversed .and the verdict of the jury reinstated, with costs.
Order setting aside the verdict on the motion made on the minutes under section 999 of the Code of Civil Procedure affirmed, with costs; order dismissing the complaint on the motion to dismiss which was reserved until after verdict, and the judgment thereon affirmed, with costs.