The majority of this court has found “ arguable issues which preclude summary judgment.” I cannot agree. Even assuming the infant plaintiff were an invitee, the defendants’ duty was at most to use reasonable care in keeping their premises in a reasonably safe condition. This test the defendants have met. The injury was not due to any defect in the structure of the wall, i.e., no loose bricks or stones fell on him nor did any portion of the wall give way and thus cause him to topple (Carbone v. Mackchil Realty Corp., 296 N. Y. 154). For was the injury due to the design of the wall, i.e., sharpened spikes or broken glass (O’Driscoll v. Metropolitan Life Ins. Co., 178 Misc. 372). Plaintiff simply *391fell from the wall. On what theory then can the defendants be held liable 1 We do not have the attractive nuisance doctrine in this State (Morse v. Buffalo Tank Corp., 280 N. Y. 110) and even if we take into consideration children’s propensities to climb about and play (Collentine v. City of New York, 279 N. Y. 119) and recognize that the standard of care owing to a child is higher than that owing to an adult (Gloshinsky v. Bergen Mills Transp. Co., 279 N. Y. 54), this plaintiff would still be precluded from recovery. As stated by the Supreme Court of Minnesota in Kayser v. Lindell (73 Minn. 123, 126): “It is true that, if the owner of premises keeps upon them a concealed trap, and a person coming upon the premises by invitation is injured thereby, he may recover. But there was no mantrap in this case. The wall was plain to be seen. The. child knew it was there, and fell off of it in the daytime. While the owner of premises may owe more duty to a child than to an adult coming upon his premises by implied invitation, yet he is not bound to guard every stairway, cellarway, retaining wall, shed, tree and open window on his premises, so that such a child cannot climb to a precipitous place and fall off.” The courts of this State and others have been in accord (see McCann v. City of New York, 270 App. Div. 1040, affd. 296 N. Y. 886; Albert v. City of New York, 75 App. Div. 553; State ex rel. Kansas City v. Ellison, 281 Mo. 667; Callahan v. Buttrey, 186 F. Supp. 715; Schiavone v. Falango, 149 Conn. 293). In Schiavone (p. 298) the Supreme Court of Errors of Connecticut stated: “ The ordinary conduct of business * * ° requires the use of stairways, wall, fences, tools, appliances and conditions essential to its proper operation and maintenance. The landowner cannot be held to be an insurer of the safety of young children who suffer injury from a normally innocuous condition on his property. To impose liability in such cases would cause an intolerable burden and one which could not be sustained through any process of logical reasoning. Jarvis v. Howard, 310 Ky. 38, 42, 219 S. W. 2d 958; Prosser, Torts (2d Ed.) p. 444.” Further as to defendant Gordon it would appear that the infant plaintiff was a trespasser or at best a licensee. In either category, plaintiff could recover here only if the injury resulted from a trap set by the landowner. (Carbone v. Mackchil Realty Corp., supra.) The stick supporting the lily plant simply was not such a defect or a trap. It was open for all to see. To hold the landowner negligent would prevent landowners in general from utilizing their rights of ownership.
The judgment should be affirmed.
*392Gibson, P. J., Taylor and Aulisi, JJ., concur with Herlihy, J.; Reynolds, J., dissents and votes to affirm, in opinion.
Judgment and order reversed, on the law and the facts, and motions denied, with costs to appellants.