The plaintiff, an infant of the age of seven years, accompanied his mother into the cemetery of the defendant to visit his father’s grave in connection with a religious ceremony. While the ceremony was in progress the infant expressed a desire to urinate. The defendant maintained lavatories within the cemetery for the use of visitors, but the plaintiff’s mother, not desiring to leave the ceremonies, instructed the plaintiff to go over by a fence, out of the way. The infant proceeded to a point 125 feet distant from his father’s grave, where a headstone fell upon and broke his leg. The infant was tgn years old at the time of the trial, and by consent he was allowed to testify without being sworn. He said he did not touch the stone that fell upon him. An employee of the defendant, employed as a watchman, testified he saw the infant take hold of the stone and rock it. Without going into the question of the weight of the evidence, however, and assuming that the stone fell without any interference on the part of the plaintiff, the judgment cannot stand, because it does not appear that there was any breach on the part of the defendant of any duty owing to the plaintiff.
The cemetery in question is divided into two sections. In one section the defendant undertakes to care for the graves, for which service it is compensated by the owners. In the other section the owners do not pay anything to the defendant for the care and upkeep of the graves and the defendant does not undertake to care for the same. It was in the latter section of the cemetery that the plaintiff was injured. Concededly he was not, when injured, upon a regular pathway laid out and maintained as Such by the defendant. He was injured in a depression between grave mounds. There was considerable testimony as to whether *288or not there was any defined pathway at the place in question, and the evidence upon the subject is not clear. It may be assumed, however, that the plaintiff might rightfully walk between the grave mounds if such course were reasonably necessary as a means of access to a grave that he was entitled to visit. (Dutton v. Greenwood Cemetery Co., 80 App. Div. 352.) No such reason exists in the case at bar, however, but on the contrary it appears that the plaintiff was sent by his guardian “ to hide himself and do something,” for the convenience of himself and that of his guardian, the latter not desiring to conduct the plaintiff to the usual place provided by the defendant. Under these circumstances the plaintiff put himself in the position of a mere licensee, to whom the defendant owed no affirmative duty, and who took the premises as he found them. In Heskell v. Auburn L., H. & P. Co. (209 N. Y. 86) Judge Collin points out that in order to come under an implied invitation as distinguished from a mere license, there must at least be some mutuality of interest in the subject to which the visitor's business relates, and in illustration of the rule, at page 92, quotes words that are peculiarly applicable to the facts of the case at bar: “ We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant.”
In the case at bar there was no mutuality of interest in this plaintiff in the uncared-for portion of the cemetery. There was only a motive of private convenience.
In Cusick v. Adams (115 N. Y. 55) Judge Geay, writing for the court, defines the rule generally applicable to licenses, as follows: “-The principle is now well settled by repeated adjudications, in this country and in England, that where a person comes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not .liable for negligence; for such person has taken all the risk upon himself. The theory of liability in negligence cases is the violation of some legal duty to exercise care.” As sustaining the foregoing rule, see, also, Fox v. Warner-Quinlan Asphalt Co. (204 N. Y. 240) and Vaughan v. Transit Development Co. (222 id. 79).
In the last cited case, the court, by Judge Pound (at p. 82) said: “ If plaintiff had had no permission to come on the premises he would have been a trespasser. If he had been there by invitation or on lawful business of interest to both parties he would have been an invitee. But he was there by permission, for his own convenience, and his status was that of a bare licensee. * * *.
*289“The question is, what is the proper measure of defendant’s duty or care to the plaintiff? * * *.
“ In Fox v. Warner-Quinlan Asphalt Co. (204 N. Y. 240, 245), * * * Willard Bartlett, J., says: ‘As to mere licensees the extent of the obligation of owners or occupiers of land not chargeable with affirmative negligence is to refrain from inflicting upon such licensees intentional or wanton injury and from setting dangerous devices thereon such as spring guns or like agencies for the purpose of harming trespassers.’ * * *. More specifically, as Peckham, J., said in Walsh v. Fitchburg R. R. Co. (145 N. Y. 301, 306), defendant owed plaintiff, ‘ a duty to abstain from injuring him either intentionally, or by failing to exercise reasonable care, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience.’ ”
In 11 Corpus Juris (p. 61) it is said that “A cemetery association is not hable to owners of lots who leave the avenues or ways provided for access to lots and suffer personal injuries on that part of the ground outside of the limits of such ways.”
In Mount Greenwood Cemetery Assn. v. Hildebrand (126 Ill. App. 399) it was held as follows: “ The owner of a lot in a cemetery has no implied license to roam at will through all of the cemetery grounds, nor is a cemetery association charged in law with the duty of maintaining all of its grounds in a reasonably safe condition for persons thus roaming through them, and such an association is not guilty of actionable negligence where one, through the owner, enters upon the cemetery grounds and is injured while walking upon a portion of such grounds other than the roads and pathways expressly provided by the association as the means of reaching the lot to which such person had a right of way.”
'In Barry v. Calvary Cemetery Assn. (106 Mo. App. 358) it was held that “ Where the grounds of a cemetery were laid off with roadways constructed for the accommodation of visitors, who were nevertheless permitted to walk over the ground at will, the owner of a lot in the cemetery, with a card of admission, who left the roadway and walked across the ground, became a mere licensee, and could not maintain an action against the cemetery company for damages caused by stepping into a hole left in the ground.”
In 29 Cyc. 452, it is stated as a rule of law that “ Where a person has entered on the premises of another under invitation express or implied he is bound by that invitation and becomes a bare licensee if he goes to some other part of the premises for purposes of his own.”
In Flanagan v. Atlantic Asphalt Co. (37 App. Div. 476), an action to recover damages for personal injuries, it appeared that *290the defendant had made a contract with the plaintiff’s employer for the cartage of asphalt from a yard maintained by the defendant; that the plaintiff, desiring to relieve himself, left his truck and went to a place near a gate in the fence inclosing the yard, where he was injured by the fall of the gate through some unknown cause. Held, that when the employee left that portion of the premises where his duties required him to be and went to the gate for reasons of his own, he went at his own risk and, when in that position, was not entitled to assume that the defendant would use all reasonable care to protect him. Mr. Justice Ingraham said: “We have the case of a person upon the premises of another, voluntarily and for his own purpose leaving a place of safety and going to another place. There was nothing that required him to select this particular position near the gate; nor is there anything to show that the defendant anticipated that the workmen employed upon the carts would place themselves in such a position as to require it to guard against the gate’s falling. * * *. The first question presented is whether the defendant owed any duty to the plaintiff to keep this gate, when open, in such a condition that it could not fall, so that a neglect to perform such duty would give the plaintiff a cause of action against the defendant.
“ * * * It is certain that no work that the plaintiff was called upon to do required him to use this part of the yard, and there was no invitation of the defendant to the plaintiff, express or implied, to use this gate or fence for the purpose for which he did use it. It is said that the defendant provided no water closet for the men, but it was under no obligation to do so; and its failure to furnish such a convenience was certainly no invitation to the workmen to use any portion of the premises that they saw fit for such purpose. It is difficult to see, therefore, what duty the defendant owed to the plaintiff in connection with this private purpose.”
Moreover, there is not the slightest evidence of any circumstances to have put the defendant on actual or constructive notice as to the dangerous condition of the headstone which fell upon the plaintiff. Evidence as to the condition of the cement or pin was only visible after the stone fell. The testimony shows that said monument was properly set in the first instance. It was erected by the owner of the burial plot subject only to regulations as to the size thereof. Although higher originally than the rules of the defendant required, the base upon which it rested was sunk into the ground to take up the excess height, which fact gave it greater stability. The headstone was set in cement upon the base, and in addition a metal pin connected the two, set partly in the base and partly in the headstone, at the center thereof. The headstone *291was in an erect position up to the time of the accident, and there is no evidence in the record that previous to the accident there was anything to indicate that the headstone was not securely fastened to the base. While the stone had been in position sixteen years, there is no evidence that a headstone would ordinarily require resetting within such a period. The facts in the case at bar are thus distinguished from those in the case of Dutton v. Greenwood Cemetery Co. (80 App. Div. 352), relied on by the respondent. In that case the plaintiff’s child was injured by the fall of a headstone while walking along a path which gave access to the grave that was being visited, and it further appears that the headstone had been improperly set originally and that it was visibly in a dangerous condition. Among the reasons stated by the court in that case for holding the defendant liable are the following: “ The defendant owning the property and lawfully assuming to supervise and control its care and maintenance, including the keeping of the monuments and tombstones in this portion of the grounds in safe and proper condition, the application to it of the general rule of liability for negligence necessarily follows.” (Italics not in original.)
As stated, in the case at bar the defendant did not assume to care for and maintain the graves and monuments in the well-defined section of the cemetery where the plaintiff was injured. To impose upon the defendant the duty of insuring the stability and safety of each and every tombstone in the uncared-for section of the cemetery, irrespective of any question of notice to the defendant of any unsafe condition, in effect, would remove any distinction between the cared-for and the uncared-for sections of the cemetery, and either compel the defendant to render service without compensation in the latter section or to make its charges therein commensurate with the service rendered. Thus a holding of liability in the case at bar would be to lay down a measure of care that would prevent the keeping.of a portion of a cemetery as the uncared-for portion and might require those to go to Potter’s Field or a Pauper’s Grave whose limited means would otherwise afford them the comfort of purchasing a cheaper plot in such uncared-for portion of the cemetery.
It follows that the judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs.
Dowling, McAvoy and Martin, JJ., concur; Clarke, P. J., dissents.