
    Emma Opper, Administratrix, etc., of Henry Opper, Deceased, Respondent, v. Isaac Davega, Jr., Appellant, Impleaded with Leopold Hellinger.
    First Department,
    December 7, 1906.
    Nuisance — injury on cellarway used by tenant — ho recovery for negligence in action brought on theory of nuisance.
    When an action against a landlord and his tenant for injuries received by falling down a cellarway has been tried wholly on the theory that the structure was a nuisance, which fact was not established, there can be no recovery against the tenant based on Ills negligence in using the cellarway. ,
    Appeal by the defendant, Isaac Bavega, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 1st day of March, 1906, upon the verdict of a jury for $8,300, and also from an order entered in said-clerk’s office on the 27th day of March, 1906, denying the said defendant’s motion for a new trial’made upon the minutes.
    
      David Tim, for the appellant.
    
      Thomas J. O'Neill, for the respondent.
   Ingraham, J.:

The case was tried upon the theory that the "two defendants, landlord and tenant, were maintaining a nuisance, and that as a result of that nuisance plaintiff’s intestate was-injured. The court expressly charged the jury that the action was based upon a nuisance, and that it was not necessary, therefore, for the plaintiff to show lack of contributory negligence on the part of the deceased. To sustain this judgment, based as it was upon the maintenance of a nuisance, there must be evidence which would justify a finding that the defendants or one of them did maintain such nuisance.

‘ At the end of the plaintiff’s case defendant Bavega moved to dis-' miss the complaint, which motion was denied, and an exception taken. The motion was renewed at the end of the whole ¡case and again denied, and said defendant again duly excepted. ; I. think these exceptions present the question as to whether there was any evi-. deuce to justify a finding that these defendants or either of them maintained a nuisance upon the premises. For the reasons stated in the appeal of the landlord from a judgment against him, and which is decided herewith (Opper v. Hellinger, 116 App. Div. 281), I think there was no evidence which justified a finding that either did maintain a nuisance. The utmost that can be said is that the tenant would have been liable if he negligently used this cellarway, and, in consequence of such negligence, the-plaintifi’s intestate met with the injuries which resulted in his death. That question, however, was not submitted to the jury, nor was the action tried upon any such theory. The case having been tried upon the charge of maintaining a nuisance, it cannot be sustained even if we should hold that the jury might have found upon the evidence that this defendant was guilty of negligence.

I think, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

McLaughlin, J\, concurred ; Clarke, Houghton and Scott, JJ., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  