On July 28, 1927, plaintiff, then a man of the age of fifty-one years, received personal injuries by the breaking of a plank in a part of a sidewalk in front of premises situated at 218 Duane street, borough of Manhattan, New York city. Plaintiff was the keeper of a stand for the sale of sandwiches, candy and other refreshments at 189 West street. Plaintiff’s stand was in the vicinity of the premises where he received his injuries. The premises at 218 Duane street were owned by the defendant Gar-hill Realty Corporation. On the day in question, at about three o’clock in the afternoon, plaintiff delivered a sandwich and a bottle of soda to Phillip Ruggiero at the store of Ruggiero & Son, who were tenants of the defendant Garhill Realty Corporation at 218 Duane street. After delivering the sandwich and bottle of soda to Ruggiero, plaintiff left the Ruggiero store and stepping out upon a plank sidewalk, the same broke through with him and he fell *40into space beneath, his right leg going in up to his crotch. He received very serious injuries. One of his testicles was injured, and he received serious injuries to his right knee, necessitating a serious surgical operation to his knee, compelling his absence from his business for substantially a year. The seriousness of the injuries sustained by plaintiff is not questioned and the appellants do not claim that the verdict of the jury for $2,500 in plaintiff’s favor was at all excessive.
At the point where the accident occurred, the distance from the store front to the street curb was substantially fifteen feet. Of this over four and one-half feet were planked over along in front of the Ruggiero store, the greater part of which was used for storing and displaying vegetables. Outside of this planked portion of the sidewalk there was a cement sidewalk about ten feet six inches in width. The contention on the part of the defendant city was'that the place where plaintiff fell was no part of the sidewalk, and that, the city was not responsible therefor or for keeping the same in repair, and that the same was not used by pedestrians in passing along the street. However, we find at the trial that the planked portion where the plaintiff fell was treated as a part of the sidewalk. Indeed, the court in instructing the jury charged as follows: “ There is a duty upon the defendant, that is upon the owner of property to keep the sidewalk abutting his premises in good repair, and that duty also is cast upon the city. Now, one of the questions in this case is whether or not that sidewalk was maintained in a reasonably safe condition. Was it maintained in good repair? If you find that it was not, then you must determine whether or not the plaintiff did anything to contribute to this accident. In other words, plaintiffs in cases of this character in order to recover must show you that this injury was caused solely through the negligence of the defendant. So that the first thing is to determine whether or not the plaintiff, in going in and out of 218 Duane Street, in the manner in which he did, did so as a reasonably prudent person would have done under like circumstances and under like conditions. If you find that he did, then proceed to the second proposition, which I attempted to explain before, and determine whether or not the City and the defendant owner maintained the sidewalk in good repair. If you find that a dangerous condition existed there, or that it was out of repair the defendants would be hable, provided they had either actual or constructive notice of its condition.” There was no exception taken by either defendant to such charge, and the law as stated by the court became the law of the case. We think, for the purposes of this appeal, we must regard the space where plaintiff fell as a part of the sidewalk. The *41evidence during the trial also referred to that portion that was planked as a part of the sidewalk. The city surveyor testified as follows: “ This sidewalk from the house line to the curb is fifteen feet wide. The planking extends from the house fine toward the direction of the curb out three and a half feet.” It appeared that beyond this there was a wooden coping of about one foot nine inches. In the requests by the assistant corporation counsel for charges to the jury the corporation counsel referred to the place where the plaintiff fell as a part of the sidewalk. We think, under the evidence and the pleadings in the case, the plank platform which broke and injured plaintiff was a part of the sidewalk, and it may well be presumed that the city’s consent was obtained to the maintenance of such platform. (Jorgensen v. Squires, 144 N. Y. 280.) In the brief by the appellant city the corporation counsel attempts to distinguish between the use of a sidewalk by persons traveling along a city street and persons traveling to certain street numbers and then crossing the sidewalk to enter a building on the street. It would seem plain that in either case the rights of a pedestrian to use the sidewalk and the duty of the city are the same. Were a pedestrian to enter the Ruggiero store at 218 Duane street from the public street it was necessary to pass over this planking which formed a part of the sidewalk in front of the premises. There is no basis for the city’s contention that the planked portion of the walk was used exclusively for the displaying of merchandise. Certainly, the part in front of the entrance to the Ruggiero store was used as a sidewalk. The premises were leased to Ruggiero & Son by the defendant Garhill Realty Corporation. The president of said defendant, appellant, admitted that the planking had been there for some twenty years to his knowledge, and was used for display purposes on the street of vegetables, fruits, etc., and that the planking was almost constantly wet. The evidence of a bystander who was employed in the adjoining store and who saw the accident, was to the effect that the plank originally had been an inch and a half in thickness, but was worn down to about half an inch in thickness at the place wheie it broke, and that it was rotten and wet at the place where it broke. The planking had been there for many years and there is no evidence that there was inspection, either by the city or by the owner of the store property, to ascertain its condition. The appellant landlord retained general control over the building and the plank walk and it was its duty to see that the sidewalk planking was kept in a reasonably safe condition. An inspection of this old sidewalk would have revealed its rotten and unsafe condition. The court charged that such was the duty of the landlord, and to that charge *42counsel for the defendant owner took no exception and made no request. The charge was a correct one. (Gelof v. Morgenroth, 130 App. Div. 17, 19; Trustees of aCnandaigua v. Foster, 156 N. Y. 354.) In the Gelof case it was said in the opinion of this court: " In this case the structure was a part of the sidewalk, and was maintained in the sidewalk for the benefit of the defendant’s premises. It is true that he had leased the store and cellar to a tenant who was under obligation to keep it in repair, but that did not relieve the owner of the building, who occupied the greater part of it for his own purposes, of the correlative duty of preventing the sidewalk from becoming dangerous to those using the street.” In Klepper v. Seymour House Corporation (246 N. Y. 85) Judge Crane, writing for the Court of Appeals, said (at p. 94): "An owner cannot escape his duty of exercising reasonable care to maintain his property adjoining a highway in reasonably safe condition unless he parts with the entire possession and control of the premises. (Trustees of Canandaigua v. Foster, 156 N. Y. 354.) Vann, J., writing in that case for this court, said: ‘ If he [the owner] transfers either title or possession, in part only, he does not escape the burden. * *' * As the duty is imposed by law for the public safety, its extent is measured by whatever public safety requires. Anything less than the alienation of the entire property, either permanently, as by deed, or temporarily, as by lease, would leave the public without adequate protection.’ ”
The condition of this wooden planking was testified to by plaintiff who had noticed for several months that the planking was weak and bent when stepped, upon. He was also corroborated by a young man working in an adjacent store. The condition had existed for such a long time as to charge both of the defendants with constructive notice of its condition. The worn plank which broke, broke entirely across and was wet and rotten throughout and when stepped on was weak and sagged down. Notice will be presumed where a defect is visible and apparent and has been in that condition so long that the city is presumed to have seen it, or failing to see it was negligent. (Schmidt v. City of New York, 179 App. Div. 667.) Much is made of plaintiff’s testimony that there was nothing unusual about the planks that would cause him to think there was danger. Clearly he meant by this that the planking looked all right. He swore positively that for months the planks had sagged when stepped.upon, and he was corroborated in this by other testimony. The worn and rotten condition of the planks as shown after the accident furnishes further corroboration.
We think the evidence was sufficient to present a question of fact as to the negligence of both of the defendants. There was no *43evidence of contributory negligence on the part of plaintiff. Plaintiff testified that when he left the store he walked at an ordinary rate of speed.
The judgment appealed from should be affirmed, with costs to plaintiff, respondent, against the defendants, appellants.
McAvoy and Sherman, JJ., concur; Finch, P. J., and Martin, J., dissent and vote for reversal and dismissal of complaint as to defendant the city of New York, and for affirmance as to defendant Garhill Realty Corporation.