Scott, J.:
Defendant appeals from a judgment for damages for personal injuries entered upon a verdict, and from the order deny-, ing her motion for a new trial. The defendant is the owner of an office building, eight or more stories in height, in the city *87of New York. On March 14, 1905, she leased the store and basement to the Long Island Railroad Company for a term of years. On May 6, 1905, the railroad company sub-leased the basement for a term of years to the firm of Beuttell & Son, dealers in oilcloth and linoleum. There was what is known as a sidewalk elevator running from the basement to the street surface. The elevator was appurtenant to the use of the basement, was adapted only to the use of the tenant of the basement, and was used solely by such tenant. In fact it could have been of no use to any other occupant of the building. The plaintiff was shipping clerk for Beuttell & Son, the tenants of the basement, and, as he himself testified, nobody used the elevator except Beuttell & Son, and nobody ran it except plaintiff himself. Occasionally the engineer of the building used the elevator to carry up ashes, but this was only occasionally and then by the express permission of plaintiff, whose testimony on this point was: “ They were allowed to bring them [the ash cans] up on the passenger elevator, but I was kind enough to let them take them up on my elevator once in a while.” There is no evidence that defendant or any agent of hers knew of this occasional use of the elevator. On the day of the accident plaintiff was riding up on this elevator with a load consisting of three rolls of linoleum. When part way up a triangular link broke, letting down one side of the elevator, precipitating plaintiff and the rolls of linoleum to the bottom of the shaft, resulting in the injuries for which he sues.
Although the elevator is not specifically mentioned in defendant’s lease to the railroad company it is so obviously appurtenant to the basement and of use only to the tenant of that part of the building that it was clearly included in the lease, and,.later, in the lease to Beuttell & Son. That the parties so considered it is evidenced by the fact that the tenant assumed the duty of keeping it in repair. In September, 1905, the then tenants of the basement, Beuttell & Son, employed an experienced elevator builder to make repairs upon this elevator, and it appears to have been this builder who furnished the link which afterwards gave way. It is entirely clear that defendant parted with control of this elevator to her tenant, and that this tenant or its sub-tenant assumed and exercised *88sole control over it. ■ A finding to the contrary would be clearly against the weight of the evidence. Under these circumstances no responsibility rests upon defendant for the failure of the elevator, for there is no proof or suggestion that it was not in good order when she made the lease, nor is any subsequent notice shown to. have been given to her that it-has fallen out of repair, although such notice, if it had been given, would probably not have affected her liability. The plaintiff lays great stress and apparently his chief reliance upon a clause in the lease to the railroad company: “ That the within rent includes steam heat and elevator service during regular business hours in common with the other tenants,” and refers us to the Appellate Term case of Wagner v. Welling (84 N.Y.S. 979" court="N.Y. App. Term." date_filed="1903-11-12" href="https://app.midpage.ai/document/wagner-v-welling-8069548?utm_source=webapp" opinion_id="8069548">84 N. Y. Supp. 979), wherein, under somewhat similar circumstances to those here present, a landlord was held to be'liable for a defective sidewalk elevator. There is, however, a significant difference between that case and this. In that case the undertaking of the landlord was “ to furnish 1 steam heat and elevator service, ’ ” which was deemed to cover all the elevators, including the one running from the basement to the sidewalk-. In the present case the landlord undertakes to furnish elevator service “in common with the other tenants ” which applies clearly, and as we think exclusively, to the freight and passenger elevators provided for the common use of all the tenants in the building. The case of Wagner v. Welling, although entitled to great respect, is -not controlling upon us and it is not necessary to determine now . whether or not, in a precisely similar case, we should be dis- . posed to follow it. Dor the present it is sufficient to point out the difference in the facts. We are unable to see in any view of the case, as presented on this appeal, how the defendant can legally be held responsible for the injuries to the plaintiff.
The judgment and order appealed from must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingraham, P. J., McLaughlin, Olarke and Dowling, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.