(dissenting). The rule established by Cullings v. Goetz (256 N. Y. 287) is not applicable. That rule is based upon the assumption that the landlord is out of possession and that liability in negligence must be predicated upon possession and control. In this case surrender by the landlord, possession by the tenant and the accident all occurred on the same day. The defect was known to the landlord and unknown to the tenant. The surrender by the landlord had been so recent in point of time that it cannot reasonably be said that she had so completely divorced herself from control of the premises as to relieve her from liability for hidden defects. (Kilmer v. White, 254 N. Y. 64.)
The judgment should be affirmed.
*545Gleetnoh and TIettebmyeb, JJ., concur with Does, J.; Towetley, J., dissents in opinion in which Maetiet, P. J., concurs.
Judgment reversed, with costs, and the complaint dismissed, with costs. Settle order on notice. [See post, p. 975.]