I concur for reversal but favor a new trial. The determination by the majority that defendant Wacholder was negligent is on a different theory from that submitted to the jury on the trial. Somewhat vaguely the jury were told that the doctrine of res ipsa loquitur applied; and there was no definite statement of liability to be applied to this defendant, who was not the owner of the pole and had no duty, right or opportunity to make inspection and repair on the premises of another who was apparently objecting to its use by defendant’s tenants. Defendant may be liable to her tenants on the theory that, without right and without knowledge as to whether the pole was defective or not, she authorized them to use the pole of another; but that is not the theory on which this case was clearly submitted to the jury.
The doctrine in McGuire v. Bell Telephone Co. (167 N. Y. 208) is scarcely applicable here. In that case the defendant was using a pole belonging to another, by license and permission. Here there is no claim that this defendant had any such permission. On the contrary, permission was not sought, and the plaintiffs as well as defendant Wacholder were trespassers. If there is to be a new trial as to defendant Penner, there should also be a new trial as to defendant Wacholder. Otherwise the practical result will probably be that the liability will fall entirely on the latter, for the plaintiffs have already recovered full damages.
Judgment dismissing complaint as to defendant Wacholder reversed on the law, with costs, verdict reinstated, the action severed, and judgment directed in favor of plaintiffs against defendant Wacholder upon such verdict, with costs.
The appeal by defendant Penner from the judgment is dismissed, as unnecessary in view of the decision in Fornagiel v. Wacholder, No. 2 (247 App. Div. 793), decided herewith.