(dissenting). I dissenfiand vote to affirm the judgment and order appealed from.
This is the second time that the plaintiff has had a verdict. When the case was first before us, we reversed on the ground that the verdict was against the weight of the evidence. Now it is proposed to reverse a second verdict in plaintiff’s favor, this time on the ground that an error was committed by the trial court in the reception of evidence as to the custom and practice of other municipalities in the engaging of lifeguards for their swimming pools. Aside from the duty of reasonable care in the maintenance and operation of this municipal swimming pool and the protection of the public whom it had invited to use it, the defendant was charged by the Sanitary Code with the duty of providing that the *462pool should be under the personal supervision of an operator or competent attendant trained in life-saving procedure. This rule is general in its language. It sets up no standard for competency nor does it specify what shall be adequate training in life-saving procedure for such attendant. There are many and varied degrees of competency on the part of swimming pool attendants and many and varied standards of proficiency and training in life-saving procedure. What would be a proper standard for a small, relatively shallow pool surely would not be adequate for a large and well-patronized pool. Whether the defendant had complied with this rule was a question of fact for the jury and it surely would have been relevant and of assistance to the jury in determining this question to have shown to it the qualifications and usage of other municipalities as to the competency and the amount of life-saving training required of the attendant. It is always proper to show a practical construction placed upon a statute and it is proper to show the general custom and practice in determining what reasonable care requires. A reasonable construction must be placed upon this rule and it was, therefore, competent to show what amount of training other municipalities had required of its attendants in complying with the rule. This is not for the purpose of varying the provisions of the rule, but rather for the purpose of construing it, especially since it is so general in its terms. Evidence of the ordinary practice or of the uniform custom of persons in the performance under similar circumstances of acts like those which are alleged to have been done negligently is generally competent evidence and this general rule has been applied to a variety of acts. (Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Levine v. Blaine Co., 273 id. 386.) In Battelle v. Mercantile Warehouse Co. (139 App. Div. 649) the defendant was charged with negligence in that it failed to employ a watchman and as a result certain goods stored by the plaintiffs with the defendant for hire were stolen. The proofs showed that the defendant did employ a night watchman in common with other merchants and warehousemen in the vicinity and that it was not customary for warehouses to employ any watchman on the inside or to maintain burglar alarms in their warehouses. Surely proof as to the amount of training in life-saving procedure required by municipalities in general under this rule was some evidence as to what this defendant should have done in complying with the rule. I do not mean that it would be absolutely binding but it would be admissible for whatever it is worth. For example, if municipalities in general required their swimming pool attendants to be graduates of certain types of life-saving schools and this defendant had engaged that sort of an attendant, it would be *463competent for the defendant to show that custom and its own compliance with it. Likewise it would be just as competent to show the custom if one existed and then to show the defendant’s failure to comply with it.
We are all familiar with the general rule that custom and usage may be admitted in the construction of constitutions, statutes and the like. Of course, such custom and usage cannot vary the terms of the statute and cannot be admitted if repugnant to the express terms of the statute, but they are entitled to consideration in determining a doubtful question of construction. I do not believe that any member of our court would be able to say just how much training an attendant should have in life-saving procedure in order to comply with this rule. That was a question of fact for the jury and the parties were entitled to show general custom and usage in this regard to assist the jury in determining whether defendant had complied with the statute.
We should not go out of our way to reverse a second recovery in this action. If there is any doubt about the admissibility of this evidence we should affirm and at least give the plaintiff the right to have the Court of Appeals pass upon it, especially after the plaintiff has won twice in the trial court.
I, therefore, vote to affirm.
Schenck, J., concurs.
Judgment and order appealed from reversed on the law and facts, and new trial granted, with costs to abide the event.