Schwartz v. Mann

155 N.Y.S. 209 | N.Y. App. Term. | 1915

SHEARN, J.

[1-3] The hallway in the tenement where plaintiff stumbled upon a step and fell was located on the second floor. It is conceded that there is no common-law duty to light the stairs and hallways of a tenement house. The plaintiff could only recover by establishing a violation of the Tenement House Law (Consol. Laws, c. 61). Section 74 contains the provision concerning the maintenance of artificial light between sunrise and sunset. Such lighting is only required when, in the opinion of the department charged with the enforcement of the Tenement House Law, the hallway is not sufficiently lighted. Plaintiff was injured at about 6:30 a. m. The sun rose on that day at 5 :08. There was no evidence that there was any order issued by the tenement house department requiring the owner to- keep a light burning in the hallway. Consequently the question of artificial light was out of the case, and liability turned on whether there was the requisite amount of glass in the doors at the end of the hall. On this issue, although the evidence could have easily been made certain, the testimony was inconclusive, and warranted submission to- the jury. But the court, in addition, submitted to the jury the question whether “the defendant was under legal obligation to have the gaslight burning at the time of the accident.” Questions of legal obligation are, of course, for the court, and not for the jury; but, as above pointed out, the question of burning a. gaslight in the hall was out of the case.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.