Utility Lines Construction Co., Inc., specializes in the extremely dangerous work of transferring high tension electric lines from old to new poles without interruption of service. It undertook to perform its specialty as to a 20-year-old pole jointly owned by defendants. As customary, prior to the time that Utility took charge, defend*326ants installed the new pole, which was 32 feet above the ground and 7 feet shorter than the old one, severed the old pole at its base, and lashed both poles together at the base and 20 feet above the ground. The old pole was defective; that was the reason for its replacement. It was so stated in writing to Utility, whose foreman on the job was aware of its status. While plaintiff’s intestate, an employee of Utility, was at work, the old pole snapped at a point 20 feet above the ground, causing his death. Under the circumstances no actionable negligence can be imputed to defendants (Storm v. New York Tel. Co., 270 N. Y. 103; Kowalsky v. Conreco Co., 264 N. Y. 125; Mullin v. Genesee County Elec. Light, Power & Gas Co., 202 N. Y. 275). The proximate cause of the accident was the negligence of Utility, its foreman and employees, including the intestate. Despite knowledge that this was a defective pole and that the area of danger from a break due to dry rot existed upward from the lashing 20 feet above the ground, they did no more than perfunctorily to tap and make two isolated jabs with a knife to determine the texture of the wood. At the area where the pole snapped there were well-defined and unplugged boltholes surrounded by cracks, grooves, furrows and channels. No examination was made of this area although it was there that Utility had added a lashing of the poles. There was no higher lashing by Utility. Immediately prior to the accident, three workers, including the intestate, each weighing 170 pounds, were engaged, above the lashing, in shifting and swinging around on the old pole after they had detached a guy wire, which was the only support above the lashing for the pole.
Nolan, P. J., and Kleinfeld, J., concur with Beldóck, J.; Wenzel and Murphy, JJ., dissent and vote to affirm, in memorandum.
Judgment, as amended, reversed and a new trial granted, with costs to appellant to abide the event, payable by respondents-appellants Staten Island Edison Corporation and New York Telephone Company.