This action which was predicated upon the theory that the respondents were answerable in negligence, was instituted to recover damages for the death on July 10, 1931, of the plaintiff’s intestate, Elmer Meyer, Jr., a seven-year-old boy, who was drowned in a manure pit which was practically filled with water.
The respondent, Brush Farm Stables, Inc., was the lessee of a plot of land covering four acres in Westchester county, N. Y. The premises were maintained and operated by it as a stable and riding academy. At the time of this accident there were about sixty horses in the stable. One Joseph Cronin, an uncle of the deceased, was employed as a groom. As part compensation for his services he was permitted to occupy a house which was located on the property about five or six hundred feet from the stable. The manure pit, which was on the opposite side of the stable from the house, was made of concrete, about eighteen feet long, ten feet wide, and six or seven feet in depth. It was constructed prior to the time Brush Farm Stables, Inc., took possession under its lease. It was not used for the purpose for which it was built since, although it was near the rear door of the stable, it was not readily accessible.
Cronin and his wife were not available as witnesses when the case came on for trial, as, according to the father of the child, “ He got in some trouble ” and disappeared with his wife without leaving a forwarding address.
The child was seen alive last about six p. m. in the evening of the tenth day of July. Pleshkopf said, “ I saw him before I left the stable, he was between the stable and the riding rink, between the house where Cronin lived and the riding rink.” Whether or not the child had his evening meal at Cronin’s house does not appear. The hour when, and the manner in which he arrived at the pit where his body was found the following morning cannot be determined from the record. The testimony adduced does not aid us in trying to determine how this boy met his tragic end. We are left only to surmise.
The theory upon which the appellant seeks to fasten liability upon the respondents is that the manure pit was a trap or pitfall. The difficulty with that contention is that there is nothing in the record to sustain it. In so far as the respondents were concerned the youngster was, at the most, a bare licensee on the premises. (See Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240.) It is true that Cronin had the right to invite the youngster to his home. It did not follow from that, however, that the respondents permitted him to go into the stable or around it for the purpose of reaching the manure pit. Pleshkopf as a reasonably prudent man could have had no reason to anticipate that the child, unaccompanied, would venture away from Cronin’s house.
*168A review of the facts in this case leads us to the irresistible conclusion that the court at Trial Term committed no error either in law or in fact, and consequently, the judgment should be affirmed with costs.
Townley and Cohn, JJ., concur; Martin, P. J., and O’Malley, J., dissent and vote to reverse and grant a new trial.