(dissenting):
The infant plaintiff was a boy ten years old at the time of the trial. On the 8th of May, 1921, the infant plaintiff, then seven *292years old, had gone with his mother to attend religious services at his father’s grave at Mount Olivet Cemetery at Maspeth, L. I. This grave was a short distance from the Russian chapel. It was the custom, after the services in the chapel, for the priests to go to the different graves for prayers. The boy wanted to urinate and his mother said he could not do it there with the priests and other people around. It was too far to go to the public lavatory. So she told him to go down to the fence. He left the grave and went down across the avenue, eighteen feet wide, and proceeded as far as the Earl grave, about one hundred and twenty feet away from his father’s grave. On this grave was a stone which weighed 125 pounds. As he was passing it, it fell on him and fractured his leg. This stone had been up for some years and was in a part of the cemetery known as the uncared-for part, that is, the lot owners contributed nothing to the up-keep of that part of the cemetery. The graves there are very close, in length they are parallel to the roadway, and on each side and at each end, by reason of the mounds, there is a space eighteen to twenty-two inches wide which is alluded to as a path. The defendant claims they are not paths, that there are regular paths four feet wide, eighty feet apart. The defense had one witness, a watchman who said this boy rocked the stone and that is what made it fall. The boy says he did not touch the stone, that he was a foot and a half from it when it fell. The court gave a very careful charge, in which he said: “ The contention of the plaintiff in this case is that those spaces as prolonged constituted paths: that they áfforded access to graves, and that those spaces at the southerly or northerly ends of graves as laid out, running in an easterly and westerly direction, were as much ‘ paths ’ as the spaces on the easterly and westerly side of graves, and they say they were recognized as paths because they say that they afforded the only means or the most natural means at least for those who desired to go to the spot where somebody had been interred, to go, and that they were recognized by the defendant corporation as being the means supplied by it for reaching the different graves.
“A person lawfully inside of a cemetery may lawfully walk along any path. He is 'not confined to a walk along a path which leads directly to the grave that he desires to visit. He may walk along a path which is in a different part of the cemetery. He may stand in front of a grave which is the grave of somebody that he has known nothing about, and has never heard of, and as long as he is on a path, that is to say, something that has been set apart for the use of those who have occasion to visit graves, or their approach to those graves, he is not a trespasser.
“ If the space between the southerly end of the mound on the *293Earl grave and the northerly end of the mound on the grave to the south of it was a part of a path, and John met his accident and received his injury when in that space, then at that time he was not a trespasser.
“ * * * If it fell [alluding to the stone], no matter how weak it may have been, because John put his hands on it and moved and swayed it, ' rocked ’ it, as the witness for the defense, Dieckmann, says to and fro, then this defendant is not responsible for the injury which the boy received as a result of the fall of that stone upon him.
“ If that stone fell without any conscious action of the boy bringing about its fall, without his having laid hand on it, and fell upon the boy while the boy was on a space inside of that cemetery which to the outward eye appeared to be a path, and seemed to be a portion of the way leading to the grave,— if that stone fell because it had been allowed to get into a position of manifest disrepair, where it was on a slant so great as to be visible to the eye of an onlooker, then you may consider the question as to whether or not the defendant corporation exercised due care with respect to the maintenance of safety in the paths of the cemetery at the point adjacent to that stone.
“ There is a duty of care on the part of a cemetery corporation, and it has been said and very wisely and properly said that it cannot be doubted that such a corporation ' owes some duty of care to those who are lawfully on the premises to see to it that they are reasonably safe, in so far as ordinary diligence will accomplish that result. It is not necessary that express knowledge of the dangerous condition of a stone in a cemetery be shown to have been possessed by the officers of the corporation before liability attaches if they should have had, by the exercise of reasonable oversight, knowledge of such condition.’ ”
Thus, it seems to me, the learned court fairly left the questions of negligence and contributory negligence to the jury.
In Dutton v. Greenwood Cemetery Co. (80 App. Div. 352) a little child, two and one-half years old, was injured by the fall of a tombstone in Greenwood Cemetery. The plaintiff’s plot and the one from which the tombstone fell were side by side, and both were in a large “ public lot,” as it was called by the defendant. In this particular public lot there were more than 500 graves and about 100 tombstones. The court said: “ Persons having occasion to visit this portion of the grounds are accustomed to walk between the graves as the only means of access to their own plats or subdivisions. * * *. It cannot be doubted that the defendant owes some duty of care to those who are lawfully on the premises to *294see to it that they are reasonably safe in so far as ordinary diligence will accomplish that result. The learned counsel for the defendant conceded on the trial that if any liability existed it attached to the defendant, but he insisted that express knowledge of the dangerous condition must first be acquired before the defendant can be held to be under any obligation to act. There is, however, nothing in the situation to remove the case from the operation of the general rules governing constructive notice. The defendant is the absolute owner of the property and in full possession and control of it, those to whom receipts for lots have been given having no estate or interest in the land as such, but merely a right to its use for burial purposes, subject to the rules, regulations and general control of the defendant. * * *. The stone which fell in this case had been set more than a dozen years and apparently improperly. There were holes in the base and corresponding holes in the headstone for the purpose of inserting metallic dowels to keep the latter in place, but no dowels had been placed in the holes. The base was beveled from the point of contact with the headstone, and the stone must have gradually shifted so that it was ready to fall at the merest touch at the time of the accident. The evidence given by the plaintiff’s wife was to the effect that the little girl was not playing at the time and did not touch the stone unless her attire may have brushed it as she was passing, while the defendant proved that had the stone been set in its proper place upon the base, even without dowels, its weight would have kept it firmly so that it could only be dislodged by the application of considerable force beyond the power of the child. The defendant owning the property and lawfully assuming to supervise and control its care a'nd 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. * * *. It is obvious from what has been said that there is no element of contributory negligence in the proof, and that the defendant’s negligence is fairly established from the condition of the tombstone on the day it fell, and which must have been discoverable upon ordinary inspection, but which inspection was never made; and also from the length of time which had elapsed since the stone was improperly placed in the first instance.”
In the case at bar there was evidence that there was no cement between the stone and the base, that the stone was “ clean,” that there were pieces of cement that came from between the stone and the base lying around where a metal pin was protruding in a perpendicular way between the stone and the base, that this pin was rotted away, “ and when you took it in your hand it would melt *295between your fingers like sand.” There was no evidence of any inspection of the condition of the monuments after they were erected, while there was evidence that the grass was cut in this part of the cemetery two or three times a year.
It seems to me that a question of fact was presented and, the question having been determined by-the jury in favor of the plaintiff, that the judgment should be affirmed.
Judgment and order reversed, with costs, and complaint dismissed, with costs.