
18 N.Y.2d 987 (1966)
Joseph Gladstone, Appellant,
v.
State of New York, Respondent. (Claim No. 37405.)
Court of Appeals of the State of New York.
Argued November 29, 1966.
Decided December 30, 1966.
Adolph I. King for appellant.
Louis J. Lefkowitz, Attorney-General (Ruth V. Iles and Ruth Kessler Toch of counsel), for respondent.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN. Dissent: Judge KEATING.
Order affirmed, without costs.
Judge KEATING dissents and votes to reverse in the following memorandum: While I agree that there was no negligence proved as to the condition of the high-way, *989 the rotted and decayed condition of the guardrails, initially erected between 1913 and 1916, which it was the duty of the State to maintain, justified the award to claimant by the Court of Claims Judge. The happening of such an accident was foreseeable. There was no evidence of contributory negligence on the part of claimant. (See Countryman v. State of New York, 251 App. Div. 509, affd. 277 N.Y. 586; Sanders v. State of New York, 191 Misc. 248, affd. 274 App. Div. 842, affd. 298 N.Y. 850.)
