Beedenbender v. Midtown Properties, Inc.

Frank, J. (concurring).

I concur in result and agree that the judgment must be reversed and a new trial ordered. I cannot, however, accept the thesis that policemen, firemen and others charged with duties affecting public safety and health may not, under any circumstances, be invitees in entering upon private property. I do not believe that Meiers v. Koch Brewery (229 N. Y. 10) so holds. In Maloney v. Hearst Hotels Corp. (274 N. Y. 106,110), the Court of Appeals expressly reserved the question “ for further consideration ”, since it was unnecessary for the decision there. Under the circumstances in this case, the question as to whether plaintiff may have been an invitee may well be one for submission to the jury.

Peck, P. J., Beeitel and Basin', JJ., concur with Boteln, J.; Feank, J., concurs in the result in opinion.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.