(dissenting). I adopt, as my own, the succinct and excellent dissenting opinion of the late Mr. Justice Quinn in the Appellate Term holding that in striding over a 30-inch, almost hip-high roof parapet without looking to see what was in view on the other side, and plaintiff’s own testimony that had he looked he would have seen the air shaft into which he fell, plaintiff was contributorily negligent as a matter of law, entitling defendant to a dismissal of the complaint.
In my opinion there is still another ground mandating dismissal. Plaintiff testified that it was fireman Enzo Brun who gave him permission to 'go to the roof by asking plaintiff to “ give me a hand taking some equipment up to the roof. ” Fireman Brun had no authority to allow plaintiff to go to the roof. “ For the purpose of preventing unnecessary jeopardy to civilians and interference with operations of members [of the Fire Department] at fires and emergencies,” civilians may not be permitted to enter fire buildings “ except by authority of the officer in command.” (N. Y. C. Fire Dept. Reg. No. 11.5.23 [d].) Concededly the. officer in command was a Mr. Scollan. The record clearly establishes that Mr. Scollan did not authorize plaintiff to enter the burning building. Nor is there any basis for an inference that Scollan saw and recognized the *160plaintiff in the building until just before telling him to leave the roof. On the contrary, the plaintiff himself testified to Scollan’s surprise at seeing him on the roof just before telling him to leave. Scollan confirmed it.
The principle of nonliability has been applied in the case of private corporations, recovery being denied to a person who was unauthorized to engage in the activity which resulted in his injury. (See Duschmik v. Deco Rest., 276 N. Y. 439; Bernhardt v. American Ry. Express Co., 218 App. Div. 195.) Certainly defendant municipal corporation should have similar protection. Plaintiff entered the building knowing that he lacked the requisite permission of the officer in command. In so doing he was in violation of the Fire Department regulations having the force of law. As the Court of Appeals has most recently held: ‘ ‘ Before the defendant is cast in liability, it must appear that defendant breached a duty owed to plaintiffs, and such breach proximately caused the injury complained of. There is no showing of defendant’s knowledge of any likelihood of plaintiffs’ presence at such times as would amount to an acquiescence from which defendant’s consent could be inferred.” (Warmsley v. Long Is. Banana Co., 35 N Y 2d 953, 954.)
While I deeply sympathize with plaintiff’s tragic plight resulting from the accident, I am bound by the rule of law as I see it and vote to reverse and dismiss the complaint. Were I not so persuaded I would hold that the verdict is against the weight of the credible evidence. Although the difference between assumption of risk and contributory negligence often eludes me, as it does in this case, I concur with ,the view expressed iby Mr. Justice Tilzeb.
Mabkewich, J. P., and Lupiano, J., concur with Cafozzoli, J.; Tilzeb and Nunez, JJ., dissent in separate opinions.
Order of the Appellate Term, First Department, entered on May 29, 1974, affirmed. Respondents shall recover of appellant $60 costs and disbursements of this appeal.