Opinion
May 13, 1942.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs. Memorandum: Defendant installed its poles and wires under a franchise, duly granted to it, and, furthermore, installed them in a proper manner. It was error for the court, in its charge, to permit the jury to find defendant negligent in not anticipating that danger would arise from some unusual and extraordinary interference with the wires. ( Buell v. Utica Gas, etc., Co., 230 App. Div. 328; affd., 259 N.Y. 443.) Cases cited by respondent, such as Braun v. Buffalo General Electric Co. ( 200 N.Y. 484) and Caruso v. Troy Gas Co. ( 153 App. Div. 431; affd., 209 N.Y. 510), do not apply. In those cases electric wires were installed in close proximity to buildings, in such manner that the usual and customary use of the buildings was likely to bring persons in contact with the wires. The error in the charge would call for a reversal of the judgment on the law and a new trial. While it would doubtless be the duty of defendant to remove or change its wires, upon a proper demand, the record lacks proof that defendant refused to remove its wires or neglected to do so within the time limit set for such removal; therefore the complaint should be dismissed. All concur, except Dowling and Harris, JJ., who dissent and vote for affimance. (The judgment is for plaintiff in an action for damages for the death of plaintiff's intestate resulting by reason of negligent condition of wiring. The order denies a motion for a new trial.)