Bridget Marsh fell upon the snow and ice upon the sidewalk along the defendant’s premises, and brought an action against the city of Ithaca to recover damages therefor and recovered judgment for $1,000 damages and $152.50 costs, April 6, 1908, and this action is brought to recover the same from the defendant, he having been notified by the city of the action and required to defend .the same. In her complaint against the city she alleged that the defendant carelessly and negligently-suffered, allowed and permitted water from a defective conductor to collect and freeze and accumulate ice and snow on the sidewalk, “ and negligently and carelessly allowed, suffered and permitted said ice and frozen snow to accumulate and remain for a long period of time, on and prior to the 28th day of January, 1907, on the sidewalk * * * at and near the northwest corner of said building owned by said Bichard A. Crozier so as to become dangerous to persons passing along the same as they legally might. Said ice and snow having been beaten smooth and slippery which had been there for a long period of time previous, and the said sidewalk at said place was in an icy, slippery, dangerous and practically impassable condition, all of which said defendant had due notice and was well known to the officials, servants and agents of said defendant City, as plaintiff is informed and verily believes, and of *495which defendant had or might have informed itself in time enough to make said sidewalk safe before the occurrence of the accident hereinafter mentioned.”
It does not appear in this case, except from the pleadings and the judgment, what was the actual issue litigated in the Marsh case, and whether the evidence tended to show a ground of liability other than from ice formed by water coming from Orozier’s conductor. Upon the trial of this action the plaintiff proved that the conductor from defendant’s building discharged its water upon a stone and then escaped across the sidewalk at the northeast comer of his building near an alleyway belonging to the city, which furnished the entrance for teams to some buildings next to the defendant, and proved by Bridget Marsh that as she was passing the northwest comer of Orozier’s block she slipped and fell on the hard ice and broke her leg. She presented her claim against the city and recovered therefor.
It also appeared that where the water came from the conductor onto the sidewalk the ice was frozen for about five feet each side of the conductor pipe, being the thickest Immediately in front of it and gradually sloping. It also appeared that at the time the whole of the walk along the Crozier building was covered with snow and ice. The ordinances of the city provided that no person should conduct from any building through any pipe, gutter or trough any water upon the sidewalk “nor shall such water be conducted across any sidewalk, unless the same be made to run in a pipe or groove below the surface of the walk.”
The court denied the defendant’s motion for a nonsuit. 'Thereupon defendant’s counsel suggested that he wanted to present to the jury the question whether the injury was the result of ice formed from water coming from the pipe, or from causes or neglect of the city, or ice formed independent of acts of the defendant, or by the commingled acts, and stated that he would ask the court to charge the jury upon that subject, particularly if it was the commingled acts of the two and they could not tell positively which was the exact cause that the plaintiff' cannot recover. He also suggested that they wished to raise a question as to the exact place where the accident took place.
*496The court.remarked that after an 'examination of .the judgment roll it was of the opinion that neither of the defenses suggested is available and that it would have to direct a verdict against the defendant.
/‘Defendant’s Gomase!-: I offer ¡fio show that there was á groove -or depression constructed in the sidewalk at the point where the water Rowed from this eave-trough helow the surface of the 'Sidewalk by the stones beingformed in a “ V ” shape or trough to permit the water to cross the-sidewalk, and I offer to show also,, that the complainant, Bridget Marsh, slipped and fell at a point beyond of .from four to six feet north of where the-eave-trough was, and'ask to go to the jury as to whether the injury was from the -snow and ice from the eave-trough or from .the snow' and ice or the irregular surface caused by the track across the sidewalk, and :ask to go- to tiie jury npon all the issues in the case. Plaintiff’s .Counsel: We object to all the offers on the ground that the evidence would be incompetent,, irrelevant and immaterial and ¡not admissible in this action, and on the further ground that the- judgment roll in the action of Marsh v. The City of Ithaca is conclusive upon those questions. [Objection ¡sustained. Exception by -defendant’s counsel.] ”
■ The .court directed a verdict for the plaintiff for $1,£02.44, to which the defendant duly excepted, and his motion to -set aside the verdict upon the minutes wa-s -denied by order duly entered.
The -evidence in the Marsh -case is not reported and it is not •conclusively shown that the city was held liable solely on-account of the ice formed by water from the conductor. Perhaps the genera! -Condition of the walk in front of Grazier’s premises was taken into consideration and formed a basis for recovery. The' allegation of the complaint was .sufficient to authorize a recovery irrespective of the conductor for a negligent accumulation of ice and snow at the point of the fall. The judgmentdoesnot,. therefore^ conclusively establish that the sole cause of the recovery arose from the condition of the defendant’s ■ conductor, and it does not show conclusively that the fall 'took place within -five feet -of the conductor or of a line -drawn ftónl' W straight across the walk. I think the -defendant was ■ ehtMled-’to make proof of the facts offered. The former judg*497ment is only conclusive as to the facts necessarily and actually decided by it, and the condition of the -walk and the cause and place of the fall are not so clearly shown by the judgment that the defendant is not entitled to have the entire facts presented for the consideration of the jury. The plaintiff can exclude proof of the facts only by showing that the recovery in the Marsh case rested solely upon the condition caused by the defective water pipe. The judgment and order should, therefore, he reversed anda new trial granted, with costs to the appellant to abide the event
All concurred, except Houghton, J., dissenting in opinion, in which Smith, P. J., concurred.