
    Catherine Goetz, as Administratrix, etc., of Michael J. Goetz, Deceased, Respondent, v. Jane E. Duffy, Individually and as Executrix, etc., of Terrence J. Duffy, Deceased, Appellant, Impleaded with Charles A. Hetzel and Others, Defendants.
    Second Department,
    February 28, 1916.
    Trial — theory of case binding on appeal—landlord and tenant — improper fire escapes on factory building, city of New York—provisions of Municipal Building Code not available unless proved at trial—judicial notice—when documentary evidence received by appellate court.
    Where an action to recover for personal injuries has been tried upon the theory that the duties of the defendant landlord were regulated by sections 82 and 94 of the Labor Law relating to fire escapes, and an appeal has been taken to the Court of Appeals and argued on that theory, the defendant cannot subsequently maintain that her duties were regulated solely by section 103 of the Building Code of the city of New York, where it was not put in evidence and no portion of it appears on the record on appeal.
    
      The court will not take judicial notice of such Municipal Code, and if relied upon in judicial proceedings it must be proved by competent evidence. While documentary evidence may be received by an appellate court for the purpose of affirming a judgment, it may not be received for the purpose of reversing one.
    Appeal by the defendant, Jane E. Duffy, individually and as executrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of October, 1915, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 20th day of October, 1915, denying appellant’s motion for a new trial made upon the minutes.
    
      George M. Pinney [James B. Henney with him on the brief], for the appellant.
    
      Thomas J. O'Neill \L. F. Fish with him on the brief], for the respondent.
   Per Curiam:

We think the judgment and order in this case must be affirmed unless the defendant is able to distinguish the facts and law on this trial from the case as determined by the Court of Appeals. (Goetz v. Duffy, 215 N. Y. 53.)

On the former trial and on the former appeals it was assumed that the duty of the Duffy estate was regulated by sections 82 and 94 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), and the decision of the Court of Appeals rested upon that theory. At this trial and on this appeal the appellant Duffy contends that her duty as landlord, in relation to fire escapes on the factory premises, was regulated exclusively by section 103 of the Building Code of the city of Hew York, then in force, and cites in support of this contention City of New York v. Trustees (85 App. Div. 355; affd., 180 N. Y. 527). A supreme difficulty with this contention now and here is that the Building Code ” was not offered in evidence at the trial and no portion of it appears in the record on this appeal. It is a mere code of municipal ordinances, authorized originally by section 647 of the Greater Hew York charter, as enacted in 1897 (Chap. 378), and ratified by section 407 of the amended charter of 1901 (Chap. 466, as amd. by Laws of 1904, chaps. 602, 628). Its existence and provisions, if relied upon in a judicial proceeding, must be proved by competent evidence. Neither is a subject of judicial cognizance. (Porter v. Waring, 69 N. Y. 250; City of New York v. Seely-Taylor Co., 149 App. Div. 98.) Thus it is that this question was not raised adequately at the trial and is not before this court now. While documentary evidence may be received by an appellate court for the purpose of affirming a judgment, it may not be received for the purpose of reversing one.

The judgment and order are affirmed, with costs.

Present — Junks, P. J., Thomas, Carr, Eich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.  