
    Frederick Speckman, Respondent, v. Abraham Boehm, Appellant.
    
      Landlord and tenant—liability of the lessee of a bu/ilding, who gives permission to a ■ sub-lessee of the top floor to tahe material from the basement, for an injury, resulting,■ to an employee of the sub-lessee owing to the unsafe condition of the basement floor.
    
    The right given by the lessee of a building to a sub-lessee of the top floor thereof,, to enter the basement of the building which was unoccupied, and to take cer- , tain material therefrom, which right, while offered as an inducement to the! sub-lessee to make the lease, was not conferred by the written lease, must be, considered, a mere privilege to be exercised for the sub-lessee’s own benefit, and a person who is sent by the sub-lessee’ to. the basement "for' the purpose of '■ obtaining the material referred to, occupies the position of a licensee, and the . lessee is not liable for injuries sustained by him owing to the unsafe condition - of the- floor of the basement, unless such condition was in the nature of a trap: and the lessee was aware of this condition.
    In such a case a charge in an action against the lessee by the person so injured; that “it was the duty óf thg landlord' (the defendant) to exercise the reasonable*- • care of. a prudent man not to suffer the continuance of any defect or condition . '.which he had reasonable cause to believe would cause injury to any one rightfully on that floor,”, and that “the fact that the defendant did not actually' know of the decayed condition of the floor would give him no immunity from liability if in the exercise of reasonable cafe he should have discovered its con-: ■ dition;” is erroneous, as the defendant is only liable in case he has knowledge-of the dangerous condition of the flooring and fails to give proper warning.-
    
      Semble, that if the. permission given by the lessee to the sub-lessee is to be construed as an invitation, 'and the condition of the floor was such that a prudent . man should have been aware of its danger, the sub-lessee, who had as much ' knowledge of its condition as the lessee did, was bound- to warn his servant when he sent him into the basement.
    Appeal by the defendant, Abraham. Boehm, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Kings on the 12th day of April, 1898, upon the verdict of a jury for $750,- and also from an order entered in said clerk’s office on the 12th day of April,, 1898,¡ as■-resettled, and entered as resettled in said clerk’s office on the 7th day of May, 1898, denying the- defendant’s motion for a new trial made upon the-, minutes.
    The action was brought to recover damages for personal injuríes resulting to the plaintiff from- the alleged negligence of the defendant.
    
      
      Franklin Pierce [John Jeroloman with him on the brief], for the appellant.
    
      Donald F. Ayres, for the respondent.
   Cullen, J.:

The defendant was the lessee of a building in the city of Hew York, the various floors of which he sublet to other tenants. In June, 1896, Alfred Stover hired the top floor of the premises by a written lease. At this time the basement of the premises was vacant. Stover testified that, as an inducement to lease the premises, the defendant, told him he might have some shelving and other material in the basement with which to make partitions. This statement the defendant denied. Subsequently Stover sent the plaintiff into the basement to obtain the shelving. . The basement was large and rather dark. While the plaintiff was at the far end of the basement, getting the shelving, he broke, through some of the boards which constituted the flooring, and received the injuries which are the subject of this action. The evidence tended to show that these boards had broken because of their decayed condition, a decay probably caused by the conduct of the former tenant in allowing water to drip and stand on the floor. The only evidence to charge the defendant with notice of this condition was the testimony of a witness who accompanied the defendant and a third person, who contemplated, leasing the premises, into the basement; this testimony was to the effect that the proposed tenant spoke of the floor not being in good condition, to which the defendant answered that if he took the basement he would repair the floor. This was about two or three weeks before the accident. At the time the three persons went all over the basement, and the witness saw no holes in tlfe floor, and there seems to have been nothing that excited the fear of any of the parties as to its safety. Stover went with the defendant into the basement, and the latter pointed out to him the shelving he might obtain'. Subsequently Stover sent the plaintiff into the cellar to take the lumber. The basement was kept locked.

We are of the opinion that the evidence was insufficient to show negligence on thé part of the defendant. The case is not at all similar to that of a store or shop which the owner invites the public to enter, nor to that of a factory or workshop which the owner is bound to see is safe and secure for persons entering upon business or in the discharge of their employment. We are inclined to the opinion that the plaintiff is to be considered as no more than a licensee. Thd written lease gave Stover no right to enter the basement, nor to take the lumber; and, therefore, the right given him by thedefendant must be considered a mere privilege to be exercised for Stover’s own benefit. The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” (Camp. Neg. § 33; cited with approval in Bennett v. Railroad Co., 102 U. S. 577,) If the plaintiff is to be regarded as a mere licensee, it is clear that the defendant was not answerable for the unsafe condition of the premises'unless. such condition was in the nature of a trap, and the defendant was aware of that condition. He was not responsible for negligence, passive, not active, nor of omission and not of commis■sion. (Larmore v. Crown Point Iron Co., 101 N. Y. 391; Cusick v. Adams, 115 id. 55 ; Sterger v. Van Sicklen, 132 id. 499.) But if we construe the permission given Stover to remove the shelving, since it was offered as an inducement for. him to hire the upper floor, as more than a license and as constituting an invitation to enter the basement, still the invitation was not the same as that extended by a storekeeper to the public. In the latter case the invitation implies an affirmative assurance that the premises are safe and secure for persons who may enter thereon; and it is the duty of the owner at all times to be vigilant to see that such safety and security are attained. But the basement at the time Stover received permission to enter it was vacant and unused. Stover, according to his statement, was twice in the basement, once with the • defendant, when the latter pointed out the shelving which Stover could take. He saw as much of the flooring and knew as much of its condition as ■ the defendant did. If the appearance was such that a prudent man should have been aware of the dangerous condition of the floor, Stover was as much bound to take notice of the danger as the defendant, and if warning should have been given to any stranger entering the base-, ment to' be on his guard against the danger of accident, it was Stover upon whom the duty rested to give such warning when he sent his servant to remove the shelving. It can hardly be argued that it was-the duty of the defendant to have repaired or have relaid his floor before he gave permission to any one to remove articles from the basement. If he had known of the danger of the floor breaking through, it would undoubtedly have been his duty tó have warned any stranger against the danger he was incurring in entering the premises, but of this danger Stover was as well informed as the defendant. Stover saw the extent and character of the privilege given him, and he took it, such as it was. The learned trial court charged the jury that “ it was the duty of the landlord (the defendant) to -exercise the reasonable care of a prudent man not to suffer the continuance of any defect or condition which he had reasonable cause to believe would cause injury to any one rightfully on that floor,” and that “ the fact that the defendant did not actually know of the decayed condition of the floor would give him no immunity from liability, if in the exercise of reasonable care he should have discovered its condition.” We think this charge was, as applied to the facts of this case, erroneous, and that the defendant should have been held liable only in case he had knowledge of the dangerous condition of the floor and failed to give proper warning.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  