I dissent and vote to reverse.
Plaintiff testified there was a rug inside of the front door of the rectory entrance; that as she entered her foot was caught by the rug and she fell; and that there was a two-inch tear in the rug.
The rectory cook testified that plaintiff immediately after the accident told her that as she entered the door of the rectory the rug slipped from under her and there was no tear in the rug.
The pictures of the rug involved show no tear. The bill of particulars does not allege a torn rug. No factual findings concerning negligence were made by the Trial Justice.
The testimony of another rectory employee was stipulated without conceding its truth to the effect that plaintiff “ put her right foot forward and then she moved her left foot, and in so doing the rug placed on the floor, around the area, began to slide from under her ”,
The accident happened October 31, 1957. On April 3, 1958 plaintiff signed a statement in which there was no mention of a torn rug. The statement is in accord with the testimony given by the cook and the concession as to the testimony of the other employee to the effect that plaintiff put her right foot onto the rug and that the rug slipped causing plaintiff to lose her balance.
Plaintiff failed to prove actionable negligence.
Valente, J. P., Stevens and Bastow, JJ., concur in Memorandum; McNally, J., dissents in opinion in which Steuer, J., concurs.
Determination of the Appellate Term affirming a judgment in plaintiff’s favor in the City Court of the City of New York, New York County, affirmed, with costs to respondent.