Judgment affirmed, with costs to the respondent.
Frank and McNally, JJ., dissent in a memorandum by McNally, J.:
A reading of this record makes it apparent that the case was tried on the theory of defective construction and design. In fact, the following appears at the conclusion of the court's charge: "The Court: By agreement with counsel, a further instruction is being made. `There is no claim here by the plaintiff that the stairs in the aisle were in disrepair...
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