
    Fay Winston and Irving Winston, Respondents, v. The Prudential Insurance Company of America, Appellant, and Parkside Residences, Inc., Defendant.
   Action for personal injuries caused by a fall in certain store premises. The plaintiff wife was a patron of the lessee of the premises. Plaintiffs have joined as party defendant the owner of the premises at the time the accident happened (Parkside Residences, Inc.) and the owner of the premises at the time the premises were conveyed to the present owner (Prudential Insurance Company) on the theory that when the conveyance was had there existed a condition of nuisance from which plaintiff wife has suffered. Order denying defendant Prudential Insurance Company’s motion to dismiss the complaint as against it, as being insufficient in law, affirmed, with ten dollars costs and disbursements, with leave to said defendant to answer within ten days from the entry of the order hereon. The applicability of Torpey v. Sanders (248 App. Div. 303) may not be determined until the facts are adduced upon a trial. If the facts disclose the inapplicability of that case, then the applicability of Wilks v. N. Y. Telephone Co. (243 N. Y. 351) and Wilks v. Federal Telephone & Telegraph Co. (248 id. 618) may be determined. The premises were devoted to a public use. (Brookins v. Hecht, 235 App. Div. 792; Eckler v. Rochester Packing Co., Inc., 240 id. 752.) Lazansky, P. J., Hagarty, Carswell and Taylor, JJ., concur; Adel, J., dissents and votes for reversal and a dismissal of the complaint.  