(dissenting). The depth of the hole was two and one-half inches. It was located in the wheel track of a driveway on a side street of a village. Plaintiff’s foot was not caught nor was she tripped. In my view the holding of the trial judge that the difficulty complained of was not negligence as matter of law is right. In Hamilton v. City of Buffalo (173 N. Y. 72) plaintiff stepped upon the edge of a hole in a walk formed by the wheels of heavily loaded trucks which had caused a rounded depression, thirty-four inches long, twelve inches wide and four inches deep in the form of a letter V. In reversing the judgment of the Appellate Division, Fourth Department (55 App. Div. 423), which reversed the judgment of the trial court in dismissing the plaintiff’s complaint, the Court of Appeals said: “ The authorities of a city are not *144required to keep the streets in an absolutely perfect condition, for this would be practically impossible. All kinds of pavements that have heretofore been discovered and used are subject to wear and some displacements when used by heavily laden vehicles, and this cannot be prevented.”
In Eger v. City of New York (239 N. Y. 561) the trial court charged that if the hole was less than four inches deep but was obscured by shadows, a question of fact as to the liability of the city was presented, and refused to charge that if the jury found the depression to have been less than four inches then the city was not liable. The hole was in the sidewalk on Bedford avenue, in the city of Brooklyn, over one hundred feet from the nearest street hght. The Appellate Division in reversing held that the charge and refusal were both error (206 App. Div. 718), and the Court of Appeals affirmed.
In Smith v. City of New York (223 N. Y. 608) plaintiff, while walking on Franklin street in the city of Brooklyn, stepped into a hole in the sidewalk and fell and sustained injuries. The hole was in the form of a triangle, the base of which was nine inches long and two other sides twenty-two and twenty inches in length respectively. Plaintiff was approaching towards the apex. She claimed that she stepped into the hole and tripped over the side, faffing forward. The hole was not to exceed three and one-half inches deep. In the Appellate Division (177 App. Div. 899) plaintiff's judgment was reversed and the complaint dismissed on the ground that the evidence was not sufficient to warrant submission of the case to the jury. In affirming the judgment the Court of Appeals held that the existence of a depression in a sidewalk of at most three and one-half inches at its deepest part, without unusual features or circumstances being shown, does not import negligence on the part of the city.
In Vanderborg v. City of New York (158 App. Div. 297, opinion by Presiding Justice Jenks) the following request to charge was made and refused, and exception noted: “ If the jury finds that this depression between the sidewalk and the dirt space did not exceed three inches in depth and the plaintiff fell, assuming that he did fall by simply putting his foot into a depression three inches in depth and so received his injury, the city is not hable.” Upon the appeal Presiding Justice Jenks said: "I think that the exception was well taken and is fatal to the judgment,” and he follows with a review of the cases of this type in the Court of Appeals. As said by Collin, J., in Lalor v. City of New York (208 N. Y. 431, 433) (hole four inches deep, “ about as large as the head of a barrel, * * * and extended from the edge of the crossing which the respond*145ent was using at the time she was injured ”): “ There are no circumstances revealed by the evidence which lessen or mitigate the effect of our decisions as authority that as matter of aw the existence of the hole, as described by the witness, did not charge the defendant with negligence.” “ The recent tendency of the law as evidenced by legislative enactment has been in the direction of making less rather than more stringent the rules of municipal liability in such cases, and directing our considerations to the precise facts here presented, we think that we should be disregarding those principles of liability which are justified by reason and public policy if we should permit a recovery.’) (Gastel v. City of New York, 194 N. Y. 15.)
The pertinency of this statement by the Court of Appeals, which lays down the policy of our courts in cases of this sort, is at once apparent when the constantly increasing motor traffic, both in the number of vehicles and the weight of their loads, is considered.
In Kuhn v. Village of East Syracuse (209 App. Div. 186), a case in this department, with opinion by Presiding Justice Hubbs, plaintiff’s foe caught in the ragged edge of the concrete at the side of the hole. The hole was thirty-two inches long, eight inches wide, from two ip three inches deep, and obscured from sight by snow and slush. • There was evidence that one other person stepped into the hole on a dark night and fell. Presiding Justice Hubbs in writing to reverse said: “It is common knowledge that concrete walks will sometimes chip and break if heavy vehicles are backed against them or heavy substances are dropped upon them. To hold the village hable because this particular place had not been repaired would place upon it too strict a liability.” It seems to me that this is an authority which we should follow in the decision of this case. I cannot agree with the statement in the prevailing opinion that the ordering of a new trial was equivalent to a contradiction and repudiation of the express holding of the case to the effect that the village was not guilty of negligence as matter of law. I am impressed that the average trial judge, being himself in the exercise of ordinary care, would make no such deduction but would be guided entirely by the clear and express holding of the opinion.
In the case at bar the plaintiff claims to have fallen by reason of her stepping in the hole on the right side of the sidewalk and I fail to see the significance of the presence of the other hole so far as her accident is concerned, she having fifteen and one-half inches of good walk between her and it. The two other, so-called, accidents are of very little materiality, neither having occurred at the point of this accident. One was definitely proved to have occurred at the other hole, and the other in the middle of the sidewalk where *146the fifteen and one-half inch expanse of good walk was located. Notice to the village could not be inferred from this testimony. (Hesse v. City of New York, 185 App. Div. 707, 711; Terry v. Village of Perry, 199 N. Y. 79; Gastel v. City of New York, supra.)
The ruling of the trial judge was in plain and accurate conformity with the holding of the courts of the State on this subject, both as to the law and the facts, and the judgment should be affirmed.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.