(dissenting). In these actions the plaintiff wife obtained a verdict against defendant for personal injuries and her husband a verdict for loss of her services. From judgments entered thereon and from orders denying its motions to set aside such verdicts defendant has come to this court.
The facts are practically undisputed. Mrs. Dumary testified that on March 19,1946, while she was walking on a public sidewalk on a busy thoroughfare in defendant village her ankle turned on the rise from one flagstone to the one adjoining causing her to fall with resulting personal injuries. The difference in elevation between the two flagstones was three inches and this condition had existed, or so the jury might have found, for at least eight years,
*147This court has decided to reverse the judgments and to dismiss the complaints on the ground that no actionable negligence on the part of defendant has been established. I am not in accord with that determination. The court in arriving at its conclusion is relying largely on the doctrine announced in Butler v. Village of Oxford (186 N. Y. 444). That case was decided more than a generation ago and in the intervening years the judicial concept respecting the determination of the questions of negligence and contributory negligence has undergone a radical change (Hamer v. Village of Whitesboro, 287 N. Y. 816; Wilson v. Jaybro Realty & Development Co., Inc., 289 N. Y. 410; Keener v. Tilton, 283 N. Y. 454).
In the opinion of the majority the Hamer case, which involved a hole in a village street of two and one-half inches, is distinguished on the theory that there the village had actual notice. In the case before us the depression was three inches in depth and existed for a period of eight years and the village was chargeable with constructive notice. I am unable to see any difference between actual and constructive notice and certainly the law makes no such unwarranted distinction.
The Wilson case involved a hole in a sidewalk having a depth of one to one and one-half inches. This court is ignoring that authority on the ground that a municipal corporation was not involved.
It seems to me that there is no merit in such a contention. Municipal corporations are no longer immune from liability because of their torts. To exempt a municipality from its negligent act and to charge an individual or a private corporation with responsibility on the same facts is not only illogical and unjust but is neither good law nor good sense. We should make no such arbitrary distinction.
The quotation in the prevailing opinion from the single dissent in the Keener case has no persuasive force.
To permit defendant to escape liability in these cases on the theory that only questions of law and not of fact are involved simply means that we are burning incense on the altar of outmoded precedents.
The judgments and orders appealed from should be affirmed, with one bill of costs.
Hill, P. J., Foster and Russell, JJ., concur with Deyo, J.; Hefíernan, J., dissents in an opinion.
Judgments reversed on the law and facts, and the complaints dismissed, without costs.