The complaint in this action alleges that the Southern boulevard in the city of Albany is a public highway which it is the duty of said city to maintain in a reasonably safe *837condition for public travel; that “on or about July 30th, 1918, the defendants negligently and carelessly covered the entire surface of said boulevard with a great and unusual quantity of liquid tar, or road material, to a depth of nearly an inch, without covering the said tar or material with sand or gravel, and without leaving any space for automobiles to pass over said boulevard without passing over and through the said tar or material, and that the said defendants negligently and carelessly permitted the said material to be and remain on the driveway of said boulevard in the manner aforesaid * * * and in such a manner as to make it very dangerous for automobiles to pass over the same;” that on the said thirtieth day of July the plaintiff, without knowledge of the condition, drove upon the said tar-covered boulevard; that his automobile, running at an entirely reasonable rate of speed, became unmanageable owing to the slippery condition produced by the tar, and collided with another automobile resulting in damages to his automobile. The trial of the action resulted in a verdict for the plaintiff against both of the defendants, but the Standard Oil Company has, on motion, been ehminated from the case, and the city of Albany appeals from the judgment entered upon the verdict and from an order denying a new trial on the minutes.
The case grew out of the same accident involved in the case of Laut v. City of Albany (191 App.'Div. 753), and the present trial seems to have moved along the lines indicated in the opinion of the court in that case. The only question upon which there was any serious dispute in the evidence was whether the oil or tar covered the entire roadway and the amount of oil remaining upon the surface. The defendant’s witnesses testified that the oil was of a light quality and that it was spread with an apparatus which made it impossible to produce more than a light covering, and that only one-half of the roadway was covered even with this fight covering. The plaintiff’s witnesses, on the other hand, testified that the road was covered from the grass on either side of the driveway, and that it was of a depth ranging from a quarter of an inch to two or three inches in depressions. Taking the plaintiff’s version of the situation, there can be no doubt that a dangerous condition was created, and we are of the opinion *838that this having been due to the affirmative action of the city of Albany, through its employment of the Standard Oil Company to furnish and deliver the tar or road material upon the surface of the street, it is not in a position to say that it did not have notice of the danger which it had thus created.
We have examined the various errors suggested but we are unable to find any reason for disturbing the judgment.
The judgment and order appealed from should be affirmed, with costs.
John M. Kellogg, P. J., concurs.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.