(dissenting). I dissent and vote to affirm.
The heart of this decision is in that part of the majority opinion which says that a landlord may be held liable solely because of a covenant in the lease permitting him “ to enter the premises at any and all times and make repairs upon his own responsibility.” None of the cited cases, nor any other case I have seen, so holds. Indeed, Noble v. Marx (298 N. Y. 106, 110), one of the most recent decisions listed in the majority opinion here, is exactly to the contrary, holding as it does that an express reservation in the lease, to the landlord, of the right to enter is not enough to prove control in the landlord. The true and only rule in this State is that of Cullings v. Goetz (256 N. Y. 287, 290) which says that the power of control which will make a landlord liable is “ ‘the power and the right to admit people to the premises and to exclude people from them ’ ” (see Warren on Negligence in the New York Courts, Vol. 2A, p. 374). Not only has that Cullings rule never been revised by this court but it was the sole and express basis for exculpation of the landlord in Lafredo v. Bush Term. Co. (261 N. Y. 323) where the facts were identical with those in this case with the single exception that the Lafredo lease did not confer on the landlord an express permission to re-enter the premises for repair purposes. The Lafredo lease, like the lease in the present case, was of a pier and sheds thereon. In neither case was any so-called “ right to inspect and repair ” of any practical importance since in each situation defendant landlord maintained a large repair force and in fact did all the repairs.
The judgment should be affirmed, with costs.
Conway, Ch. J., Froessel and Burke, JJ., concur with Fuld, J.; Van Voorhis, J., concurs in result in a separate opinion in which Conway, Ch. J., also concurs; Desmond, J., dissents in an opinion; Dye, J., taking no part.
Judgment reversed, etc.