¶1(dissenting). I dissent only insofar as the defendant Clearbrook Food Shop, Inc. (hereinafter called Clear-brook), is held liable in any respect. The plaintiff’s complaint and the cross complaint of the City should be dismissed against the said defendant.
¶2The plaintiff was injured when she fell upon a break in a stone coping built around a vault that was covered by a sidewalk grating in -front of premises at the southeast corner of 159th Street and Amsterdam Avenue, New York City. The premises were owned by the defendants Gouze, and Clearbrook occupied a store on the ground or street floor. The building was very old, and for a long time had a covered vault about four feet wide topped with an iron grating on both the Amsterdam Avenue and 159th Street sides. The coping around the vault at street level was about two or three inches high and twelve inches wide. This constituted a raised part of the sidewalk. The purpose of the coping was to hold the grating in place and keep rain from flowing into the areaway beneath. The coping had fallen into a state of disrepair, which had existed since prior to September 1, 1950, when the store premises were leased to Clearbrook. The lease required Clearbrook to make necessary repairs to the leased premises, except structural repairs, but the premises obviously did not include any part of the sidewalk or coping. Clearbrook used portions of the basement of the building for storing some of its stock of goods. Access to the basement was had by means of a stairway reached *767through sidewalk doors adjacent to the so-called “ ramp ” leading into the store. These doors are south of the entrance to the store. The accident occurred north of the entranceway.
¶3Clearbrook did not use the vault or areaway beneath the sidewalk grating for the storage of its goods, but only portions of the basement within the building line.
¶4Thus it appears that there is no basis for holding Clearbrook as tenant of the store liable for the defective condition in the coping. It was not in control of the coping, neither created the condition which caused the injury, nor is it shown that Clear-brook derived any benefit from the special construction or had any obligation to repair the defect, which was not part of the entrance to the store. The defective coping was really a part of the sidewalk itself.
¶5There was testimony of promises by Clearbrook to repair the coping in front of its store premises and other evidence of attempted repairs after the accident by the landlord’s superintendent at Clearbrook’s suggestion. The storekeeper, however, denied that any sidewalk repairs were made at its request, but only repairs inside the store. However, regardless of whether any outside repairs were made, or when, the fact that the landlord’s agent may have made such repairs at the tenant’s suggestion would not create a duty on the part of the tenant not imposed by the lease to maintain the sidewalk coping. Clearbrook, therefore, should have been exculpated from liability in the circumstances of this case.
¶6Bastow and Botein, JJ., concur with Cohn, J.; Callahan, J., dissents in opinion in which Peck, P. J., concurs.
¶7Judgment, so far as appealed from, affirmed, with costs to the plaintiff-respondent.