
    Angelo Palermo, as Administrator of the Estate of Michele Palermo, Deceased, Respondent, v. The City of New York, Defendant, and Central Vermont Railway Company, Appellant.
    
      Negligence — maintenance of fence on pier in defective condition so that it gave way and one leaning thereon was thrown into water and drowned.
    
    
      Palermo v. City of New York, 197 App. Div. 947, affirmed.
    (Argued June 12, 1922;
    decided July 12, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 3, 1921, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that on or about the 25th day of August, 1915, and for some time prior thereto, the defendants negligently kept, maintained and allowed to be kept and remain a certain fence in South street, in the city of New York, and attached to and forming part of said pier, in a worn-out, defective and unsafe condition, and with some of its slats or boards unfastened and broken, all of which was known to the defendant, and, notwithstanding that the defendant knew that children and other pedestrians were wont to lean against the said fence and used the same as part of the said thoroughfare, by reason thereof, and while the above-named Michele Palermo was standing in front of and leaning against the said fence, the same gave way and caused him to fall into and drown in the East river. The answer alleged that if plaintiff’s intestate fell into the East river and was drowned at the time and place alleged in the complaint, plaintiff’s intestate, at that time, was wrongfully and without permission, right or authority on property under the control and possession of the defendant, and further if plaintiff’s intestate was drowned at the time and place or in the manner stated in the complaint, his death was due and caused by the negligence and carelessness of the plaintiff and plaintiff’s intestate and not the result of the negligence of the defendant in any degree whatsoever.
    
      Wallace R. Foster for appellant.
    
      Rosario Maggio for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, Crane and Andrews, JJ. Dissenting: McLaughlin, J.  