(dissenting). I dissent and vote to affirm.
In this action for personal injuries, this appeal is from a judgment for the defendants entered on a jury verdict in their favor. Plaintiff’s proof established that the defendants, through their agent in charge of the premises, had knowledge of the fact that the front legs of the bathtub had collapsed, causing the cut off of its lower drain. In addition, the hot-water faucet failed to close completely and as a result hot water was constantly running into the bathtub. The light fixture in the bathroom hung from the ceiling by wires. On the night in question, the infant plaintiff,'nine years of age, came into the bathroom and stood on the rim of the bathtub with his left foot, applied his right hand to a wall for support and with his left hand grasped the cord to turn on the ceiling light. In the course of pulling the light cord, the infant plaintiff’s left foot slipped and he fell into the tub of hot water and sustained the burns alleged in the complaint.
The City of New York was the record owner of the premises which it had taken by condemnation and the New York City Housing Authority, the codefendant, was concededly in charge of operation, maintenance and control of the premises at the time of the accident.
The learned trial court charged that the defendants could be held negligent only if the jury found that the light fixture in question was defective. The court further charged that the defective condition of the bathtub and the hot water therein could not be the bases of a finding of negligence against the defendants.
No liability attaches to the defendants by reason of the use of the bathtub as a step ladder; the defendants are not liable for the misuse of the bathtub. That the bathtub was in disrepair, *75its bottom drain inoperative, and the hot-water faucet thereof defective in that it could not be shut off, did not severally or in sum proximately cause the accident. (Lefkowitz v. Greenwich Sav. Bank, 293 N. Y. 711.) The defective bathtub and the hot water therein affected the nature and extent of the infant plaintiff’s injuries; they did not cause the accident which was not foreseeable. (Ranney v. Habern Realty Corp., 281 App. Div. 278, affd. 306 N. Y. 820.)
Accordingly, the judgment below should be affirmed.
Botein, P. J., Breitel, Rabin and Stevens, JJ., concur in Per Curiam opinion; McNally, J., dissents in opinion.
Judgment so far as appealed from reversed, on the law, and a new trial ordered, with costs to abide the’ event.