This action was brought to recover damages for personal injuries sustained by the infant plaintiff due to the negligence of the defendant. The infant, four years old at the time of the accident, lived with Ms aunt, one Mrs. Mosher, m the basement of the apartment house at 1983 Crotona avenue, Bronx. One Mrs. Farrell, a relative, was a jamtress of the adjoining apartment house and lived in the basement of 1985 Crotona avenue. In front of both of these houses there was an areaway extending out five feet beyond the building line and at a level of approximately five feet below the grade of the street. It was guarded by an iron picket fence. Access to the basements of these houses was by means of stairways leading from the street level. On the day of the accident Mrs. Mosher gave ,.the infant plaintiff a penny. He climbed the stairs leading from the apartment in wMch he lived to the street. When he reached the platform at the street level, he accidentally dropped Ms penny wMch fell through the fence mto the areaway of No. 1985 Crotona avenue. The penny rolled underneath or near an old radiator wMch had been stored for some time at the far end of tMs areaway. For more than five weeks prior to the accident the radiator had been tilted against the wall at a sharp angle, resting on two points, a valve and a nut. The position of the radiator was so unstable that when trucks went by, it would shake and wobble. When the infant plaintiff went to the end of the *100.areaway to recover his penny and reached for it, the radiator fell upon him, striking his right foot and injuring it.
The judgment for plaintiffs is attacked by the defendant on the ground that the construction of the areaway five feet beyond the building line was legal, that the infant plaintiff was a trespasser or a bare licensee, that the defendant was not guilty of any negligence, and finally, that the infant plaintiff was incompetent to testify under oath.
The infant at the time of the trial was seven years old. Before he was sworn, the court carefully examined him as to his understanding of the difference between truth and falsity and his appreciation of the obligation imposed by the oath about to be administered to him. The defendant’s attorney participated in this questioning. A careful consideration of the testimony given by the boy both upon his direct and upon his cross-examination confirms the conclusion of the trial justice that the child was competent to testify and was properly sworn.
The infant plaintiff was neither a trespasser nor a mere licensee. The space occupied by this areaway was part of the public street. The permission granted by the city authorities to maintain this area-way in no way changed the essential character of this space as a part of the public highway or operated to diminish or destroy the right . of said plaintiff to use it in common with the general public. (Acme Realty Co. v. Schinasi, 215 N. Y. 495; Hynes v. N. Y. C. R. R. Co., 231 id. 229; Fagan v. Bishop, 176 App. Div. 777.) In Acme Realty Co. v. Schinasi (supra) the court in its opinion (at p. 502) said: “ The title to the streets of the city of New York rests in the municipality as trustee for the public, and no grant or permission can be legally given that will interfere with their use by the public. The right of the public to the use of the streets is absolute and paramount.”
In Fagan v. Bishop (supra) the facts were very similar to those involved in this case. There a boy had his hat thrown by a playmate into an area in front of an apartment house. As he went to recover his hat, he stepped upon a platform leading to the basement and fell into a hole on the platform which had existed for about a year. This court held that the boy had a right to go on this platform and stairway, and was not a trespasser on private property since the platform was upon the public street. The court in its opinion (at p. 779) said: “ It appears from the exhibits in the case that with the exception of this areaway the sidewalk extended to the line of the buildings in this vicinity, and, therefore, the reasonable inference is that this was the ordinary areaway in a public street for access to the basement of a building; and if *101that be so the law imposes a duty upon the defendant to any one having occasion to use the platform or stairway for any lawful purpose to maintain the same in a reasonably safe condition. On the assumption that this platform was within the public street plaintiff had a right to go upon it and to use it and the stairway for the purpose of recovering his hat.”
In the case at bar the testimony showed that the infant plaintiff and other boys in the neighborhood were in the habit of playing in this areaway from time to time and had been frequently driven away by the janitress. This raised a question of fact for the jury whether the defendant had not created a condition which, in the exercise of reasonable care, it should have anticipated would be dangerous to children. (See Sarapin v. S. & S. Corrugated Paper Machinery Co., Inc., 209 App. Div. 377.)
The jury was warranted in finding that the radiator was placed in a state of unstable equilibrium and that it might well have been affected by any jar caused by trucks passing in the street or by chance touching. The fact that it was stored at the far end of the areaway and at a point remote from the bottom of the stairs leading to the basement is unimportant. The dangerous condition was there and any persons, adults or children, having occasion to use the areaway to recover property accidentally dropped in the vicinity of the radiator, were exposed to it.
The judgment should be affirmed, with costs.
Finch, P. J., Merrell and Sherman, JJ., concur; Martin, J., dissents and votes for reversal and dismissal, of the complaint.