
    William J. Roberts, as Ancillary Executor of Sarah E. Moser, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 40064.)
   Per Curiam.

The State appeals from a judgment awarding damages to the claimant. Subsequent to the trial, the claimant Sarah E. Moser died. The claim alleged that the State was negligent in constructing and maintaining a pedestrian crosswalk over the north portion of Route 20 adjacent to the front entrance to a shrine in that the walk was improperly marked and in failing to have proper lights. The court found the State negligent “in failing to maintain a properly lighted crosswalk over its property”. The claimant testified as to the happening of the accident “My foot slipped on the side and I tried to keep from falling. I was going, I was heading to fall prone but I tried hard to keep from falling, so I fell back and sat down and then I felt this pipe against my foot.” She further testified that she did not observe any markings designating the crosswalk and she made no complaint as to the lighting conditions. The record does not sustain the finding of negligence against the State and on the basis of the claimant’s own testimony, cited above, establishes her contributory negligence as a matter of law. Judgment reversed, on the law and facts, and claim dismissed, without costs. Herlihy, J. P., Reynolds and Taylor, JJ., concur; Aulisi, J., dissents, in a memorandum, in which Hamm, J., concurs; I cannot agree that the record does not sustain the finding of negligence against the defendant and that claimant was contributorily negligent as a matter of law. The trial court could find that a dangerous condition was created by the State and that it had a duty of warning the users of the crosswalk which is particularly deceptive because as shown by the exhibits a person crossing from south to the north might be misled into thinking that the gutter had been filled to a width at least equal to the sidewalk across the road. We vote to affirm.  