(dissenting). I dissent and vote to reverse the judgment and to grant a new trial. In my opinion the doctrine of res ipsa loquitur is not applicable to the facts in this case. The testimony establishes that the building from which the pail fell was an apartment house, the roof of which was used in common by all the tenants in the building for the purpose of hanging out their washing. It can be assumed that there was a parapet wall around it at least two feet high. (N. Y. City Adm. Code, § C26-444.0.) Assuming that it might be inferred from the evidence offered by the plaintiff that the paint pail belonged to the defendant and had been left on the roof, it could not fall to the street unless some force lifted it over the parapet wall. There is no proof that there were any unusual air currents or high winds. It follows that the force that lifted the pail over the parapet was exerted by some person. In such a case res ipsa loquitur is inapplicable. The mere happening of the accident fails to identify the wrongdoer. (Hardie v. Boland Co., 205 N. Y. 336; Foltis, Inc., v. City of New York, 287 id. 108.) Here, there is no “ evidence of circumstances which show that the accident would not ordinarily have occurred with*367out neglect of some duty owed to the plaintiff.” (Foliis, Inc., v. City of New York, supra, p. 115.) Wherein has the defendant committed any legal wrong? If to leave a pail on the roof is negligence, then the placing of any easily detachable appurtenance would likewise be negligence. It is more probable to assume that some mischievous person threw the pail over the parapet than to assume that by some mysterious force in the article itself it was hoisted up over the two feet of protective wall. (Sandler v. Garrison, 249 N. Y. 236.) To recover upon the res ipsa loquitur theory it was necessary for the plaintiff to prove not only that the agency producing the injury was in the exclusive control of the defendant, but also that “ ‘ there was no other equally efficient proximate cause.’ ” (Stasiukiewicz v. Marcus Contracting Co., Inc., 225 App. Div. 54.) This the plaintiff failed to do.
Lazansky, P. J., concurs with Close, J.
Judgment affirmed, with costs.