
    (October 7, 1952.)
    Edward Birner et al., Respondents, et al., Plaintiffs, v. Bickford’s, Inc., Appellant.
   Appeal from a judgment of the Supreme Court in favor of plaintiffs-respondents, entered January 16, 1952, in New York County, upon a verdict rendered at a Trial Term.

Judgment affirmed, with costs.

Van Voorhis, J.

(dissenting). The verdict for plaintiffs was upheld by the trial court, and is being sustained by this court, chiefly on the ground that defendant-appellant was negligent in that its district superintendent ordered the tables next to the window in defendant’s cafeteria removed on the morning of the hurricane, whereas in the evening they were back in place. Denying defendant’s motion to set aside the verdict and to dismiss the complaint, the trial court said: “An injury produced by an act of God does not relieve the defendant from liability when its own negligent acts concurred in and contributed to the injury.”

An examination of the record indicates that no charge of negligence was submitted to the jury based on defendant’s having replaced this table in the restaurant in its position beneath the window. The issue as submitted to the jury was whether the window was itself defective. The only evidence of any defect was that it had previously been heard to rattle.

This window was blown in by hurricane winds of unprecedented velocity, which caused enormous devastation. Undoubtedly plaintiffs were injured by flying glass, but liability cannot be fastened upon defendant due to the mere circumstance that the window had been heard to rattle.

The judgment appealed from should be reversed, with costs to defendant-appellant, and a new trial ordered.

Dore, J. P., Cohn and Breitel, JJ., concur in decision; Van Voorhis, J., dissents and votes to reverse and order a new trial in opinion in which Callahan, J., concurs.

Judgment affirmed, with costs. No opinion.  