(dissenting). Plaintiff Velma Harriet Warner was injured when a bench tipped over as she sat down upon it. The bench was owned and maintained by the city of Albany in Lincoln Park, a public park. The trial justice dismissed the complaint at the close of plaintiff’s case. The only evidence upon which negligence could possibly be predicated was that given by a police officer, who testified that shortly after the accident he examined the bench and found a pin missing. There was no proof as to what caused-the pin to be missing, how long it had been missing, or that the city had any notice of any defective condition in the bench.
I think the judgment of dismissal should be affirmed. I disagree with Justice Foster’s opinion that to hold the city liable herein would not make it an insurer. I can see no other basis than that of “ insurance ” upon which negligence can be predicated. It is not incumbent upon a defendant to assume the burden of proof of *680freedom from negligence. The record here seems devoid of proof of negligence. A pin was missing but there is no explanation as to what happened to it. No time is attempted to be fixed when the pin was removed; all that we have is that it was not there at the moment of the accident. The defendant was not bound to exercise diligence to see that no one removed this pin, for it had no reason to anticipate that it would be removed. This is the same situation as presented in Thomas v. City of New York (146 App. Div. 512), where the complaint was dismissed at the close of plaintiff’s case on the ground that plaintiff had failed to establish her cause of action. There is no proof that the city did not use reasonable care in the maintenance of the bench. The case of Slomka v. Nassau Electric Railroad Co. (191 App. Div. 727) involved an action by a passenger to recover for injuries received by the collapse of a seat. The testimony of the plaintiff was to the effect that she sat as a passenger in an adjustable seat of defendant’s car and the seat collapsed. The negligence assigned was that the seat was “ out of order and in a defective and worn condition; that the supports thereunder had not been properly placed where they belonged, by the defendant.” There was no evidence that the cause of collapse was any defect or flaw or impairment of construction and there was no evidence that the peg which held the seat had not been properly placed where it belonged by the defendant. Plaintiff relied wholly upon the evidence rule of res ipsa loquitur. The opinion of the court (p. 731) states: “ Despite the happening of the casualty, there still remained the burden upon the plaintiff to establish negligence, otherwise the defendant was an insurer, and it was not. The rule of res ipsa loquitur aids, but in itself does not inevitably accomplish. And the question for the jury was whether the plaintiff, with the advantage of the rule, had inculpated the defendant for the lack of due care under the circumstances.”
I, accordingly, do not think that the plaintiffs can sustain their position except on the theory that in a case as here presented the city is an insurer. This would put an unreasonable burden upon every municipality.
The judgment should be affirmed, with costs.
Bliss, J., concurs.
Judgment dismissing the complaint reversed on the law and facts, and a new trial granted, with costs to the appellants to abide the event.
We have considered the facts to determine if a cause of action was established and determined that it was.