I concur in the disposition of the judgment for the plaintiffs and would grant judgment to the City of New York on its cross complaints against the Welsbach Corp.
The amended complaints and bills of particulars allege negligence in the maintenance of the blinker lights attached to column 3. The cross complaints allege the contractual obligation of Welsbach to maintain said lights and to indemnify the city in the event it is cast in judgment because of improper maintenance. On the trial the claim of negligence as to the city was enlarged to include failure to comply with section 82d7-22.0 of the Administrative Code of the City of New York providing *374for striping of every post, pillar or supporting column of a superstructure located “ in the roadways of streets as to constitute a menace to vehicular traffic ”. Plaintiffs also introduced expert testimony to the effect that the city did not adequately warn motorists of the alleged condition. (Cf. Treadwell v. City of Yonkers, 192 App. Div. 421, 423.)
The parties stipulated that the issues of the cross complaints be determined by the court. The issues of the amended complaints were submitted to the jury which returned a general verdict against the defendants. The sole allegation of negligence as to Welsbach is its failure to maintain the blinker lights. Implicit in the general verdict is a finding of negligence on the part of the city and Welsbach in the maintenance of said lights. If plaintiff had not introduced other evidence of negligence on the part of the city, its right of indemnity against Welsbach would be clear. (Burke v. City of New York, 2 N Y 2d 90, 95.) Nevertheless, the result should be the same despite the other evidence.
The planning, location and erection of the offending column and its approaches were governmental functions to be discharged solely by the city’s executive officers and not subject to the opinions of other than city experts or the verdict of the jury. (Weiss v. Fote, 7 N Y 2d 579; Murrain v. Wilson Line, 270 App. Div. 372, affd. 296 N. Y. 845.) The prior occurrence on December 14, 1957 enabled the jury to find that it was causally related to the failure of the blinker lights (Kaplan v. City of New York, 10 A D 2d 319, 321) and that the failure to properly maintain them created a dangerous condition to the knowledge of the city and Welsbach. (Eastman v. State of New York, 303 N. Y. 691.)
The section of the Administrative Code relied on by the plaintiffs does not aid them. It is expressly applicable to roadways and streets and not to bridges. Moreover, the city’s failure to enforce it is not actionable. (Rivera v. City of Amsterdam, 5 A D 2d 637.) “ A fortiori, tort liability may not be imposed upon a city for violation of an ordinance, even though the ordinance has become the standard of care and the measure of liability so far as the conduct of members of the general public is concerned.” (18 McQuillin, Municipal Corporations [3d ed.], § 53.36, pp. 232-234; Von Der Haar v. City of St. Louis, 226 S. W. 2d 376, 380 [Mo.]; Bean v. City of Moberly, 350 Mo. 975.)
The record fails to demonstrate any legal liability except for the failure to maintain the warning lights. The city is therefore entitled to indemnity unless it affirmatively appears that the jury found other active negligence. The general verdict does not *375establish negligence other than the failure to maintain the blinker lights. The trial court under the stipulation of the parties was free to determine the issues of the cross complaints; this it failed to do because constrained by the verdict.
We may make the determination which the trial court ought to have made. (Civ. Prac. Act, § 584, subd. 2; Calabria v. City & Suburban Homes Co., 5 A D 2d 983, affd. 5 N Y 2d 918; Massey v. Matza, 11 A D 2d 36; Leonard v. Frantz Co., 268 App. Div. 144; Bernardine v. City of New York, 268 App. Div. 444; 9 Carmody-Wait, New York Practice, § 177, p. 603.)
In the circumstances there should be judgment for the city on its cross complaints against Welsbach.
Breitel, J. P., and Eager, J., concur with Bastow, J.; McNally, J., dissents in part in opinion, in which Valente, J., concurs.
Judgment modified by reducing by the sum of $8,195.97 the recovery of plaintiff, Meisner, and, as so modified, affirmed without costs. The affirmance of that portion of the judgment dismissing the cross complaint is without costs. Settle order on notice.