120 Misc. 546 | N.Y. App. Term. | 1923
This action was brought to recover damages for personal injuries. Plaintiff is a tenant of the defendant, and occupies a store with living rooms in the rear thereof, and also a part of a cellar underneath the store. The cellar is used by the tenant for the storage of merchandise in connection with her store. The plaintiff had exclusive use of the cellar and the only entrance to same was by the stairs leading from the street, and tins stairway was not used in common by other tenants. It appears that the plaintiff on the morning of February 5, 1921, at about a quarter past six o’clock while descending the said stairs to obtain some merchandise for a customer in the store, tripped upon the fourth step, which was broken, and fell down the remaining steps, sustaining injuries for which she seeks to recover damages. Upon the trial the case was submitted to the jury upon the theory that the landlord had control of this stairway leading to the cellar, and that if he failed to repair the defect after notice, actual or constructive, he would be hable to the plaintiff in damages. The defendant offered no testimony, and duly moved to dismiss at the end of the case.
In the absence of a specific agreement or promise to keep this stairway in repair, I cannot see on what theory the landlord can be held hable for injuries resulting from a fall because part of the stairway was out of repair and in a defective condition. The plaintiff was in exclusive possession and control of the store and the cellar underneath the store, as well as the stairway which led down to the cellar. This stairway was not, in any sense, a stairway that was used in common by ah the tenants, there being a separate entrance on the other side of the building to the cehar which the other tenants used in common.
The facts in this case bring it directly within the rule laid down in Kane v. Williams, 140 App. Div. 857, and Auerbach v. Rabiner,
The plaintiff in this case having failed to establish that the landlord was obligated to repair the stairway leading to the cellar in question, was not entitled to recover, and the judgment must be reversed, with thirty dollars costs, and the complaint dismissed on the merits, with costs.
Lehman and Burr, JJ., concur.
Judgment reversed.