(dissenting in part). I would modify to reverse and vacate the judgment dismissing plaintiff’s complaint as against the defendant New York City Housing Authority and remand for a new trial as to said defendant. In my opinion, the Housing Authority, as the owner and person in control of the Crookston Building, was under a duty to plaintiff, as its tenant in the adjoining building, to exercise reasonable care in the management and use of the Crookston Building. The duty of said defendant, as landlord, is to be determined in light of all the circumstances and on the basis of what was reasonably foreseeable as a danger to the use and occupation by the plaintiff of the adjoining premises rented from the Housing Authority. (See Divines v. Dickinson, 189 Iowa 194; Brown v. City of Sioux City, 242 Iowa 1196; Globe Leather & Shoe Findings v. Golburgh, 339 Mass. 380. Also Smith v. Faxon, 156 Mass. 589; 52 C. J. S., Landlord and Tenant, § 423, subd. e. Cf. Paltey v. Egan, 200 N. Y. 83.) The Crookston Building was vacant and abandoned, and the defendant intended to have it demolished. There was testimony that it was open and unsecured; that the doors were wide open for a month before the fire; that the glass in a front door was broken and one could walk through the frame; that children were in and out of the building every day for a month before the fire; that there were cartons, rubbish and inflammable material on the floors in the building; that the fire started in this building; that a police officer observed the fire in the trash in the middle of the main floor of the building. This testimony tended to show the existence of hazardous conditions, amounting to a nuisance (see Beauchamp v. New York City Housing Auth., 12 N Y 2d 400). In fact, the Administrative *42Code of the City of New York (C26-193.0) expressly provided: ‘ ‘ Any vacant building unguarded or open at door or window shall be deemed dangerous or unsafe as a fire hazard ”. On the basis of the record, the alleged fire hazard and the Housing Authority’s alleged negligence could be found to have contributed to the starting and spreading of the fire. With reasonable foreseeability as the test, the question of proximate cause would be one of fact. (See Payne v. City of New York, 277 N. Y. 393; Arnold v. Jackson Holding Corp., 10 A D 2d 833; Peck v. Weil, 231 App. Div. 670.) Inasmuch as the dismissal of plaintiff’s complaint was at the end of its case, we have an incomplete picture as to what care the defendant exercised in the matter of the management, supervision and control of the Crookston Building. (See Beauchamp v. New York City Housing Auth., supra, p. 407.) At the particular juncture of the case, the trial court should not have been concerned with the credibility of plaintiff’s witnesses or the weakness of its evidence. The dismissal may not stand on the theory that the court would set aside a verdict for plaintiff as against the weight of the evidence if rendered on the basis of the present record. (See Reisner v. New York Kosher Provisions, 25 A D 2d 511; Holmberg v. Donohue, 24 A D 2d 569; Prince v. City of New York, 21 A D 2d 668.)
Botein, P. J., Stevens and Rabin, JJ., concur with McGivern, J.; Eager, J., dissents in part in opinion.
Judgment so far as appealed from is affirmed, with $50 costs and disbursements to respondents.