Opinion
Argued March 3, 1969
Decided April 9, 1969
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, SAMUEL S. LEIBOWITZ, J.
George D. Hudson, pro se, for appellant.
Vincent T. Aiello and Frank J. Amabile for respondent.
Order affirmed, without costs ( Kowalsky v. Conreco Co., 264 N.Y. 125; Senkbeil v. Board of Educ. of City of N.Y., 18 N.Y.2d 789, affg. 23 A.D.2d 587, 589). No opinion.
Concur: Chief Judge FULD and Judges SCILEPPI, BERGAN and JASEN. Judges BURKE, KEATING and BREITEL dissent and vote to reverse in the following memorandum: Plaintiff's work was not concerned with the use or correction of the hazardous condition which caused the accident. Hence, the rule of the Kowalsky case ( 264 N.Y. 125) is not applicable. There was, therefore, an issue of fact to submit to the jury.