
    Walton v. Kane.
    (City Court of Brooklyn
    General Term,
    June, 1893.)
    A water-closet situated at the head of a stairway in a tenement house .overflowed, and its contents flowed down the stairs. Plaintiff, an upstairs tenant, slipped on the filthy matter and was precipitated down stairs, breaking her arm. Defendant’s son, who had the building in charge, testified that he went up and down the stairway daily. For several weeks prior to the accident the closet was out of repair and stopped up. Held, that the evidence justified a verdict for plaintiff.
    Defendant claimed that the evidence of a voluntary and absolute promise by defendant to compensate plaintiff should have been taken entirely from the jury on the ground that it was merely an offer to compromise. 1 Such evidence was admittted without objection on the part of the plain- ‘ tiff, and, before it was introduced, defendant’s counsel had brought out similar evidence on his cross-examination of plaintiff. The court instructed the jury to disregard any offer of compromise. Held, that defendant, by failing to object in the one instance, and by bringing out the testimony in the other instance, had waived her privilege.
    
      Charles J. Patterson, for plaintiff (respondent).
    
      Geo. F. Elliott, for defendant (appellant).
   Van Wyok, J.

The defendant was the owner of a tenement house on the top floor of which the plaintiff and her husband lived as tenants. The stairway leading down from the second floor had" at the topr thereof a water-closet. For some weeks prior to the accident this closet was out of repair and stopped up, so that its filthy contents and water would flow out of the basin upon the floor of the closet and thence down these stairs, which were rendered slippery with fecal matter mixed with dirty water. The plaintiff testified that she went down this stairway three steps and reached a platform about four feet square, and, while in the act of feeling her way to the edge of it, and about to take hold of the baluster, her foot slipped on some of this filthy matter and she was precipitated down fifteen steps, receiving the injuries complained of. Defendant’s son, who was in charge of and managed this house, testified that he went up and down this stairway daily. Plaintiff had a verdict for §500. Under such circumstances, the negligence of defendant and the freedom of plaintiff from contributory negligence were questions for the jury. Peil v. Reinhart, 127 N. Y. 381; Palmer v. Dearing, 93 id. 7. We think the evidence fully sustains the verdict on both questions.

The only other exception called to our attention by the ■appellant’s counsel, either in his printed brief or oral argument, is that taken to the court’s instruction to the jury. He contends that the evidence of the promise to compensate the plaintiff should have been taken entirely from the jury, on the grotind that it was merely an offer to compromise, and cites Smith v. Satterlee, 130 N. Y. 677. There are several answers which seem to us to be fatal to this contention: First. It was not an offer to compromise merely, but a voluntary and absolute promise to compensate her. Brice v. Bauer, 108 N. Y. 428, 433. Second. The court instructed the jury to disregard any offer of compromise. Third. Smith v. Satterlee, 130 N. Y. 677, and like cases simply hold that an offer of compromise is privileged, and evidence thereof will be excluded if the privilege is claimed by the objection to its admission. This testimony was admitted without objection on the part of the plaintiff, and, before it was introduced, defendant’s counsel had' brought out similar evidence on his cross-examination of plaintiff. The defendant, by failing to object in the one instance, and by bringing out the testimony in the other-instance, has waived her privilege.

For these reasons, we think the judgment and order must be affirmed, with costs.

Osborne, J., concurs.

Judgment and order affirmed. 
      
      Mr. Elliott. —I ask your honor to charge, as matter oí law, that the fact that he may have sought to settle this matter before the suit, cannot ■be construed to imply any liability on the part of the defendant.
      The Court. —What do you say to that ?
      Mr. Patterson. —I ask your honor to charge on that subject that his ■statement that he would compensate the plaintiff must be taken into con sideration by the jury, with the rest of the evidence, as to the condition l of the premises and the liability of the defendant generally It is not an offer to settle with the lady; it is the absolute promise to compensate for the injury that I claim should be taken into consideration by the jury, with the rest of the evidence.
      The Court. — I charge the request made by Mr Patterson. [Defendant excepts.]
      The Court. — I so instruct the jury.
      Mr. Patterson. — That the promise to compensate may be taken —
      The Court. — That what was said at that time may be taken into consideration by the jury.
      ■ Mr. Patterson. —On the question of liability?
      The Court. — Yes, if they find that to be the fact, that he said he would compensate her.
      Mr Patterson. —Well, that is his own evidence.
      Mr Elliott. — That is the statement made by counsel; I do not ques • fion the accuracy of it; I am assuming that Mr. Patterson has made a «correct statement.
      
        The Court.— A party has a right to settle any litigation without incurring liability, or making himself liable by the simple attempt to settle. Still, in this case there is some testimony that the party said he would compensate her, It does not appear that that was done as a means of settlement. If it was done as a means of settlement, or attempt to settle, I think you should disregard it. If it was a voluntary statement on his, part, then you may consider it along with the other evidence in the case.
      Mr. Elliott. —I ask your honor to charge that if it appeared in the course of the trial that any person within the jurisdiction of the court had knowledge of the accident and was not called, the jury have a right, to infer that, if the witness had been called, she would have testified against the interest of the party that called her.
      The Court. — That would apply to both parties in the case.
      Mr. Elliott. — Yes.
      The Court. — I so instruct the jury.
     