
    Julia Lefkowitz, Respondent, v. City of New York, Appellant.
   Action to recover damages for injuries sustained by plaintiff, a passenger, while passing through a turnstile in defendant’s transit system. Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. In the maintenance of the subway turnstile the defendant was obligated to use reasonable care. There is no evidence of any actual notice to defendant that the tui nstile was out of order before the alleged accident. Nor is there sufficient evidence of any constructive notice to charge the defendant with knowledge of the defective condition complained of. While the plaintiff testified that this turnstile had stuck on one or more prior occasions while she was using it, there is no evidence to indicate that either she or any one else called it to the attention of any employee of the defendant. The record of work done on this turnstile during the preceding six months, with one exception, shows only routine checkup, greasing and oiling, etc. The one exception was an instance some weeks before the date of the alleged accident, when a nickel stuck. The general record indicates that the turnstile had been in use by many people without any trouble over a period of years. The plaintiff’s own testimony was to the effect that on each of .the prior occasions, while the machine stuck in the first instance, she got through without any substantial difficulty. In addition, the record does not satisfactorily establish that the accident, in any event, was due to any defect in the turnstile rather than to a stumbling on the part of the plaintiff. Hagarty, Acting P. J., Adel and Aldrich, JJ., concur; Johnston and Lewis, JJ., concur for reversal of the judgment, but "dissent as to dismissal of the complaint and vote to grant a new trial, on the ground that a question of fact as to whether defendant had constructive notice of the claimed defect is involved.  