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  5. 26 N.Y.2d 295 (1970)
 

HAYES v. MALKAN

26 N.Y.2d 295 (1970)

Harold Hayes, Respondent, v. Paul Malkan, Defendant, and Consolidated Edison Company of New York, Inc., Appellant.

Court of Appeals of the State of New York.

Decided April 22, 1970.

Attorney(s) appearing for the Case

John M. Keegan and William F. McCauley for appellant.

William A. Wingate and Benjamin H. Siff for respondent.

Judges SCILEPPI, BERGAN and BREITEL concur with Judge JASEN; Chief Judge FULD dissents and votes to affirm in a separate opinion in which Judges BURKE and GIBSON concur.

JASEN, J.

Plaintiff, one of three passengers in an automobile owned and operated by defendant Malkan, was injured when the vehicle struck a utility pole owned by defendant Consolidated Edison Company. The pole which Malkan's car struck was approximately seven inches from the edge of the road and was located on private property behind a two-inch granite header.

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