
    Aileen J. Howard et al., Respondents, v. Hearn Department Stores, Inc., et al., Appellants.
   Order entered on January 23, 1961, granting plaintiffs’ motion for summary judgment and order entered on March 9, 1961, amending and resettling the order entered on January 23, 1961, affirmed, with $20 costs and disbursements to respondents. Concur — McNally, Eager and Stener, JJ.; Rabin, J. P., and Valente, J., dissent in the following memorandum by Rabin, J. P.: I dissent and vote' to reverse the order granting summary judgment against the defendants. I believe that a triable issue exists as to whether the manner of use of the ladder under the circumstances constituted negligence on the part of the defendant contractor, Midtown. Therefore, summary judgment should riot have been granted to plaintiff against Midtown and in consequence it should not have been granted against defendant, Hearn. Nor should summary judgment be granted in favor of Hearn. There is insufficient in the affidavits to permit of a determination as to Hearn’s liability or freedom therefrom. That issue should await trial.  