
    Martin Murphy, Respondent, v. Rochester Telephone Company et al., Appellants.
    (Argued April 7, 1925;
    decided May 5, 1925.)
    
      Negligence — trespass —• contract — action by lineman to recover for injuries occasioned by fall of telephone pole — when plaintiff was on pole as matter of right under contract for joint ownership of poles as modified by practical construction.
    
    
      Murphy v. Rochester Telephone Co., 208 App. Div. 392, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 14, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. This action was brought to recover damages for the alleged negligence of the defendants as joint owners of a telephone pole, which fell while-being climbed by the plaintiff, who was a lineman of the Rochester Gas and Electric Corporation, the pole breaking off at the base at the level of the ground. The question was whether under a contract between plaintiff’s employer and defendants relative to joint ownership, use and maintenance of .poles as modified by practical construction by the parties, the plaintiff was on the pole by invitation and by right.
    
      Eugene Raines for Rochester Telephone Company, appellant.
    
      Myron T. Bly for New York Telephone Company, appellant.
    
      Merwin Morehouse for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Crane, Andrews and Lehman, JJ. Dissenting: McLaughlin, J. Not voting: Pound, J.  