Opinion
November 28, 1947.
Present — Peck, P.J., Glennon, Dore, Cohn and Callahan, JJ.; Dore, J., dissents and votes to affirm. Settle order on notice.
Judgment reversed on the facts and the law and complaint dismissed upon the grounds: (1) That no actionable negligence was shown in that (a) the risk was not foreseeable by the defendant in the exercise of reasonable care, and (b) the proof was insufficient to show any dangerously defective condition of which the defendant would have notice upon reasonable inspection of the premises. (2) If there was any defect in the condition of the coping stone of which the defendant could be charged with notice, the plaintiff had equal notice thereof and was guilty of contributory negligence in fastening a rope to the coping stone for the purpose of supporting the scaffold.