
    Fourth Department,
    December, 1938.
    (December 2, 1938.)
    Guy C. Marks, 247 Hagen Street, Buffalo, New York, Appellant, v. The City of Buffalo, Mosier & Summers, Inc., and George J. Summers & Co., Inc., Respondents.
   Judgment reversed on the law as to the defendants City of Buffalo and Hosier & Summers, Inc., and a new trial granted as to said defendants, with costs to the appellant to abide the event, and affirmed as to the defendant George J. Summers & Co., Inc., with costs. Memorandum: There was evidence presented from which the jury could have found that for several years past water has run off the roof of the building located at 1266 Seneca street, in the city of Buffalo, and that the building is owned and occupied by the defendant Hosier & Summers, Inc., and that the water has run onto the sidewalk on Troupe street, a public street in the city of Buffalo, and has accumulated thereon and during the winter months has frozen and has caused the sidewalk at that point to be in a dangerous condition for use by pedestrians, and that the aforesaid conditions continued down to the day of the accident to plaintiff, and that the officials of the city of Buffalo had constructive notice of such conditions, and that as a result of these conditions the plaintiff slipped and fell on the sidewalk on Troupe street adjoining the building of Hosier & Summers, Inc. Therefore, it should have been left to the jury to determine whether plaintiff’s injuries were caused by the negligence of the defendant the City of Buffalo, and of the defendant Hosier & Summers, Inc., and whether the plaintiff was guilty of contributory negligence. The record lacks evidence of facts to establish responsibility for the condition of the roof on the part of the defendant George J. Summers & Co., Inc., which was merely an occupant of one of the stores. All concur, except Crosby and Taylor, JJ., who dissent as to the defendants City of Buffalo and Hosier & Summers, Inc., and vote for affirmance as to them. (The judgment dismisses the complaint at the close of plaintiff’s case in an action to recover damages for personal injuries sustained by falling on an icy sidewalk.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.  