The testimony establishes that plaintiff’s fall occurred during the process of the washing of the floor in defendant’s store. A photograph of the store is in the record, marked by plaintiff to indicate the spot where she fell and also where the porter was working, an intervening space of about four feet, according to the plaintiff. Under the circumstances, defendant is not liable. In Samuels v. Terry Holding Co., Inc. (227 App. Div. 68; affd., 253 N. Y. 593) the plaintiff wife slipped upon soapy water which had accumulated from the washing of the stairs above the flight which she was about to descend. In reversing judgments in favor of the plaintiffs and dismissing the complaint, Judge Finch, writing for the court, said:
“ If the plaintiff had slipped upon the stairs which were then in the process of being washed by the janitor, there is clear authority that no liability would be occasioned. As was said in a case where the plaintiff was injured by slipping upon the floor of a railroad station while it was being washed, in the dissenting opinion of Mr. Justice Henry T. Kellogg (now Judge Kellogg) in Curtiss v. Lehigh Valley R. R. Co. (194 App. Div. 931), upon whose dissenting opinion the judgment and order were reversed in the Court of Appeals (233 N. Y. 554): ‘ We find no support either in reason or in authority for holding that there was any proof of negligence on the part of the defendant for submission to a jury.’ (See, also, Kipp v. Woolworth & Co., 150 App. Div. 283.)
“ Since, therefore, there would be no negligence if the plaintiff slipped upon the stairs which were in the process of being washed, we find that such water as would trickle from these stairs down upon the next flight would be merely incidental to the necessary process of washing the stairs. * * * ”
In the Curtiss case (supra) the contention that a more appropriate time for cleaning could have been found was rejected. We find no occasion to distinguish the liability of a storekeeper from that of the owner of an apartment house or a railroad maintaining a station for the convenience of the traveling public. The burdens of shopkeepers are now sufficiently heavy without suggesting that a force be maintained for cleaning outside of regular business hours.
The judgment should be affirmed, with costs.
Townley and Cohn, JJ., concur; Glennon and Untermyer, JJ., dissent and vote to reverse and grant a new trial.