
    Joseph Gladstone, Appellant, v. State of New York, Respondent.
    (Claim No. 37405.)
    Argued November 29, 1966;
    decided December 30, 1966.
    
      
      Adolph I. King for appellant.
    
      Louis J. Lefkowitz, Attorney-General (Ruth V. lies and Ruth Kessler Toch of counsel), for respondent.
   Order affirmed, without costs.

Concur: Chief Judge Desmond and Judges Fuld, Van Voorhis, Bukke, Scileppi and Beugan. Judge Keating dissents and votes to reverse in the following memorandum: While I agree that there was no negligence proved as to the condition of the highway, the rotted and decayed condition of the guardrails, initially erected between 1913 and 1916, which it was the duty of the State to maintain, justified the award to claimant by the Court of Claims Judge.. The happening of such an accident was foreseeable. There was no evidence of contributory negligence on the part of claimant. (See Countryman v. State of New York, 251 App. Div. 509, affd. 277 N. Y. 586; Sanders v. State of New York, 191 Misc. 248, affd. 274 App. Div. 842, affd. 298 N. Y. 850.)  