Hockstein v. Congregation Talmud Torah Sons of Israel, Bronx, Inc.

Per Curiam. The proof establishes that the fence did not encroach upon the highway and that the circumstance that it was not constructed in compliance with ordinance (N. Y. Code of Ordi [208] nances, chap. 5 [Building 'Code], § 192) was not the proximate cause of the infant plaintiff’s fall into the excavation. On the contrary, the testimony offered on behalf of the infant plaintiff reveals that she climbed through the fence and then fell into the excavation. The ordinance was not designed to prevent such accidents, but was enacted for the purpose of protecting travelers on the highway. (Olsen v. Fennia Realty Co., Inc., 246 N. Y. 641.) The judgment in favor of the plaintiff cannot be sustained, for the doctrine of attractive nuisance is not accorded recognition in this State. (Mendelowitz v. Neisner, 258 N. Y. 181; Walsh v. Fitchburg R. R. Co., 145 id. 301; Dorsey v. Chautauqua Institution, 203 App. Div. 251.) Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs. All concur; present, Levy, Callahan and Untermyer, JJ.