Action to recover damages for injuries sustained by plaintiff wife by reason of a fall on a sidewalk, and by her husband for expenses and loss of services. Defendant City of New York appeals from a judgment in favor of plaintiffs and against it, which also dismisses its cross complaint against defendant Beachhaven Realty Co., Inc. Judgment modified on the law and the facts by striking out the judgment for plaintiffs and by providing in lieu thereof that the complaint be[*1030] dismissed on the law, with costs. As so modified, the judgment is unanimously affirmed, without costs. The appeal from dismissal of the cross complaint is dismissed, without costs, as academic in the light of the foregoing determination. The condition in the unpaved portion of the sidewalk between the curb and the paved portion, as to a municipality, as disclosed in this record, is not an actionable defect. (Butler v. Village of Oxford, 186 N. Y. 444; Griffin v. Town of Harrison, 268 N. Y. 238; Eger v. City of New York, 239 N. Y. 561; Keener v. Tilton, 283 N. Y. 454; Katz v. Bora Realty Corp., 263 App. Div. 309, affd. 289 N. Y. 809; Kaupferstein v. Brooklyn Edison Co., 266 App. Div. 879, affd. 292 3SL Y. 561.) Present — Hagarty, Acting P. J., Carswell, Johnston, Aldrich and Nolan, JJ.