
    Mary Bencekovich, as Administratrix, etc., of Vinko Bencekovich, Deceased, Appellant, v. Elise W. Aubry, Respondent.
    First Department,
    May 28, 1937.
    
      
      Joseph R. Apfel of counsel [Louis Fleischer, attorney], for the appellant.
    
      Frederick Mellor of counsel [William Butler, attorney], for the respondent.
   Per Curiam.

Plaintiff’s evidence established prima facie that her intestate in entering on the roof extension was an invitee, not a mere licensee. With respect to the question of contributory negligence, the burden of proving which rested upon the defendant, there was presented a question of fact for the jury. Under the circumstances, therefore, the complaint was improperly dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Martin, P. J., O’Malley, Dore, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  