
    Joe Lee, Respondent-Appellant, v. Henry Trefflich, Doing Business as Henry Trefflich & Co. et al., Appellants, and J. H. Bunnell & Co., Inc., Respondent.
    First Department,
    May 16, 1947.
    
      
      Benjamin H. Siff of counsel (H. Lee Kanmer and Milton H. Goldstricker with him on the brief; H. Lee Kanner, attorney), for respondent-appellant.
    
      Alexander E. Rosenthal of counsel (Chauncey A. Levy and Sidney Levy, attorneys), for Trefflich Pet Shop, Inc., appellant; (Bernard Breitbart, attorney), for Henry Trefflich, appellant.
    
      John P. Carson of counsel (Reginald V. Spell, attorney), for respondent.
   Van Voorhis, J.:

The trial court properly dismissed the complaint against J. H. Bunnell & Co., Inc., the owner of the building, inasmuch as there is no evidence that it should have anticipated that its tenant, Trefflich, would violate the statute (Administrative Code of City of New York, § C26-849.0; being Building Code, § 566 [see, Baldwin, N. Y. Code of Ordinances, 1936, p. 137]) by inviting the plaintiff to ride as a passenger in this freight elevator. It was not shown that other business guests of tenants had done so, nor is it customary for store patrons to attempt to operate such elevators by themselves. Furthermore, this elevator (including the automatic gate that was out of order) was concealed from view behind an ordinary door at the back of Trefflich’s private office. A store customer would not know where it was unless it was pointed out to him. The owner was not required to assume that plaintiff would be invited by Trefflich since the latter knew from the notice in the elevator that to do so was prohibited by law (cf. Benenson v. National Surety Co., 260 N. Y. 299).

The judgment in favor of plaintiff against defendants, Henry Trefflich, doing business as Henry Trefflich & Co., and Trefflich Pet Shop, Inc., should be reversed, the action severed and a new trial ordered as to said defendants with costs to said defendants to abide the event, unless plaintiff stipulates to reduce the judgment as entered against said defendants to the sum of $25,189.50, in which event the judgment as so modified should be affirmed, without costs.

The judgment insofar as it dismisses the complaint against the defendant J. H. Bunnell & Co., Inc., should he affirmed with costs to said defendant against the plaintiff.

Martin, P. J., concurs; Cohn, J., concurs in result; Callahan and Peck, JJ., dissent fi;om the affirmance of so much of the judgment as dismisses the complaint as against the defendant J. H. Bunnell & Co., Inc., and vote to reverse the judgment in favor of said defendant and to order a new trial as to all defendants unless plaintiff stipulates that the verdict shall be reinstated as reduced to the sum of $25,000 as against all defendants, and in that event that the judgment as so modified be affirmed, with costs at trial term but without costs in this court.

Judgment in favor of plaintiff against defendants, Henry Trefflich, doing business as Henry Trefflich & Co., and Trefflich Pet Shop, Inc., unanimously reversed, the action severed and a new trial ordered as to said defendants with costs to said defendants to abide the event, unless plaintiff stipulates to reduce the judgment as entered against said defendants to the sum of $25,189.50, in which event the judgment as so modified is affirmed, without costs. Judgment insofar as it dismisses the complaint against defendant J. H. Bunnell & Co., Inc., affirmed with costs to said defendant against the plaintiff. Settle order on notice.  