(dissenting.) I am inclined to concur in the views advanced by Justice Fursman in granting defendant’s motion for a' nonsuit, believing that those views are sustained by the authorities cited by him. See, also, Nicholson v. Railway Co., 41 N. Y. 525. In the latter case, a party on defendant’s premises by its license was injured by cars, not properly secured, being started by a heavy wind, and running over him. In the opinion of Chief Justice Earl (pages 532, 533) occurs the following language:
“The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right to intentionally injure him, and would be liable if it heedlessly, or carelessly injured him while performing his business. It owed him a duty to abstain from injuring him, either intentionally or carelessly, but it did not *445owe him the duty of active vigilance to see that he was not injured while upon its land merely hy permission for his own convenience. If the point where the intestate was killed had been a public highway, * * * or if in any other way he had been not only lawfully, but in the exercise of a right, at that point, the defendant would have owed him a duty to see that the cars upon the branch track were properly secured; but, as it was, they owed him no duty, and cannot be charged, as to him, with negligence in not blocking or fastening the cars.”
The above quotations show, I think, the distinction between the case under consideration and that of Barry v. Railroad Co., 92 N. Y. 289, referred to in Jifstice HERRICK’S opinion, where deceased was injured by active negligence on the part of the defendant. The above quotations also show the distinction between this case and that of Lynch v. Nurdin, 1 Adol. & E. (N. S.) 28-30. In the latter case the negligent act was committed by the defendant on the highway. The plaintiff, at the time of the injury, was where he had a right to be,—on a public street. Here the plaintiff was injured where he had no right to be,—on defendant’s premises. He was there merely by its license. The defendant could not injure him by a careless act, although on its premises without right, but owed him. no active duty. I think, as to plaintiff, it was not bound to lock up its turntable. I am therefore unable to concur in the views stated in Judge HERRICK’S opinion.