(dissenting in part). Plaintiff wife claims to have been injured when an apartment house elevator failed to stop at the basement level but continued half way below the basement and made a sudden stop causing her to fall and receive the injuries for which she and her husband bring this action against the owner and the Maintenance Company.
Plaintiffs have a verdict against both defendants-appellants. Defendant-appellant Maintenance Company, Inc., appeals from the judgment against it.
The court instructed the jury that as against the owner of the building the doctrine of res ipso loquitur applied and that they could find the owner was negligent from the mere fact that the accident did occur. As to defendant-appellant Maintenance Company, Inc., the court charged: “ With respect to the elevator Maintenance Company, it may not be held liable to third persons, such as the plaintiff, unless you find from the evidence that it was actively negligent, that is unless you find that the service company performed some act in a negligent manner which created the unsafe condition or negligently omitted to perform some act which it should have performed and which created the unsafe condition.”
The service contract entered into by the Maintenance Company and the owner of the building did not give control of the elevator *4to the Maintenance Company. (See Ames v. Jalpur Realty Corp., 20 Misc 2d 656, dismissing the complaint after trial upon failure of proof of exclusive possession of the elevator in the maintenance company after the complaint so alleging had been sustained sub nomine Ames v. Watson Elevator Co., 303 N. Y. 732.)
The recovery against defendant-appellant Jessup Holding Inc. may stand only under the rule of res ipso loquitur. This rule is inapplicable as to defendant-appellant Maintenance Company, Inc., and the absence of evidence of negligence on its part requires the dismissal of the complaint against this appellant. (Whylie v. Craig Hall, Inc., 272 App. Div. 603.)
On this record the case was not tried or presented to the jury on the theory that it was the duty of Maintenance Company, Inc., to discontinue use of the elevator because it knew or should have known the elevator was in a defective and dangerous condition. The said duty is an incident of maintenance and control, which, at the time of the occurrence, was exclusively in the owner, Jessup Holding, Inc. Moreover, on this record there was no duty owing to the plaintiffs on the part of Maintenance Company, Inc., to advise the owner to cease operating the elevator.
Accordingly, the judgment should be modified to the extent of dismissing the complaint as against defendant-appellant Maintenance Company, Inc., without prejudice to the commencement of a new action. (Civ. Prac. Act, § 23.)
Breitel, J. P., Rabin, M. M. Frank and Stevens, JJ., concur in memorandum; McNally, J., dissents in part and votes to reverse and order a new trial, in opinion.
Judgment modified, on the law and on the facts, etc. Settle order.