On May 10, 1917, the plaintiff, seven years of age, who lived with his mother, a tenant of the defendant, at No. 799 East One Hundred and Fifty-, sixth street, New York city, was injured by falling into an areaway in the back yard of the premises. The. cement coping around the edge of the аreaway broke and gave way. Three tenants occupied the premises. The ground floor was tenanted by the plaintiff and his mother) the second floor by Mrs. Schwartz and her eight children) and the top floor by Mrs. Frankel and her daughter.
*491 The depth of thе yard on the easterly side was nineteen feet, on the westerly side eighteen feet, and the width in the rear nineteen feеt, running a little bit diagonally. The areaway was about nine feet long, three feet wide and three or four feet deep, in which were windows giving light and air to the cellar. A passageway led through the cellar to doors in the rear and up a flight of steps into the yard. A door led from the plaintiff’s apartment on the ground floor out into the yard, and there were two gates in the fеnces which were always open and unlocked. The plaintiff had been at play in the yard when his mother called and he stepped toward the areaway, standing upon the coping and talking to her. The coping gave way and he was injurеd. This coping had been cracked and broken about two weeks before as men, employed by the defendant, werе working on a new clothesline pole in the rear of the yard. A crack in this cement coping was then made, wide enоugh to permit the entrance of two or three fingers. There is evidence to show that defendant’s agent, present at thе erection of this pole, and the janitress in charge of the building, knew or should have known of this defective condition. No рoint is made of the sufficiency of the evidence to prove this defective condition and notice thereof tо the defendant or. his agents.
Verdicts were found for the plaintiffs which upon appeal have been reversed. The Appellate Division were of the opinion that there was no evidence to show that this plaintiff had any right in the yard. The trial justiсe left it to the jury as a question of fact whether or not this yard was used in common by the tenants, possession thereof retаined by the landlord, and the plaintiff at play in the yard, as a matter of right, making proper use thereof.
At the outset it may be noted that no motion- was made to dismiss the complaint or for a direction of a verdict, at the close of the entirе case. This was a con
*492
cession, an admission upon the part of the defendant that there was evidence which justifiеd a submission of .the case to the jury. The Appellate Division in the absence of such a motion had no power to rеverse the judgments and hold as a matter of law that there was no evidence in the case to establish plaintiff’s rightful use of thе yard.
(People
v.
Davis,
But further than this, upon an examination of the evidence it appears that there was sufficient testimony submitted upon thе part of the plaintiffs to make it a question of fact whether or not this yard had been used for so long a time by the tenants and their children as to constitute it a place used with the knowledge and consent of the landlord in common by all the tenаnts.
The children of the tenants had used it as a playground. Tenants hung their clothes in it. At one time the daughter of Mrs. Frankel planted flowers and vegetables in the yard. Mrs. Neach, the janitress, kept the yard and areaway clean and removbd the debris. The tenants were obliged to go into the yard and fasten the lines to the clothes pole.
The defendant said that children had bеen prohibited to make use of the .yard or play in it, but this prohibition was- never communicated, so far as the evidence shows, to any of the tenants.
Annie V. Murtha testified: “ Q. And when you got up those steps from the cellar into the back yard, was there any doorway or hatchway there in the back yard to get up? A. Yes, open the door and then walk up, and then open thе other door and go out. Q. Was that any easy door to open? A. Yes. Q. Did you ever see any children go in or out that doоr? A. Sure. Q. Whose children did you see open that door? A. Schwartz. Q. What was the yard used for, Mrs. Murtha, if you know? A. We went out and hung clothes out there. There was a little clothes line and my son would go out there to play. Q. Did the other children play in that yard? A. Yes, *493 sir. Q. Did the оther people use the yard for hanging clothes? A. Yes, sir. Q. Do you know whether or not the members of that family used the yard (meаning the Frankel family, tenants on the third floor)? A. Yes, had flowers, and went down there and planted radishes and lettuce and different things in summеr. Q. How about the people on the second floor? Did they ever use the yard, to your knowledge? A. To hang clothes. Q. Hоw many children did she have, do you know? A. Oh, I guess maybe about seven or eight. Q. Did they play down in the yard sometimes? A. Yes, sir, with my son. Q. So, so far as you know, everybody in the house to some extent used that yard? A. Yes, sir. Q. How would people from other apartments get оut in the yard? A. They would go out in the hall and come down the stairs and go out that way, open the door and go out, or they could come in from the front, or there was two gates there. They could come in the gates; if they wanted to get in there, therе was four entrances to the yard.”
There is some evidence, therefore, in our opinion, establishing this yard as an appurtenance to this apartment house, used in common by the tenants, retained in the possession and control of the landlord charging him with the duty of keeping it in a reasonably safe condition.
(Doyle
v.
Lord,
The Appellate Division reversed the findings of the jury that thе defendant was negligent and dismissed the complaint. The dismissal for the reasons above stated was error. The Appellate Division, however, could have granted a new trial on the evidence. The judgments, therefore, in so far as they grant a dismissаl of the complaints, should be modified, and a new trial granted, without costs to either party.
Hiscock, Ch. J., Hogan, Cardozo, Pound and Andrews, JJ., concur; McLaughlin, J., absent.
Judgments accordingly.