
    Mary Flood, Respondent, v. Barbara Huff, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    Negligence — Landlord of tenement house liable for reasonable care only in keeping the common stairway safe.
    A woman, who had lived about seven months in a tenement house, was injured about dark because, while descending the common stairway, her foot broke through the flooring of a landing. The boards at this point were neither loose nor broken, but the flooring was variously described as “ walked out a little ” and “ worn down a good deal ”. A carpenter who, with the landlord, had examined the whole premises one week before the accident, testified that he tried the flooring in question by stamping very hard upon it, that it was not then rotten, and that he considered it safe.
    Held that no negligence upon the part of the landlord was shown.
    That the landlord was only bound to use reasonable care to keep the common stairway safe.
    Appeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, seventh district, borough of Manhattan.
    August P. Wagener, for appellant.
    Max Steinert, for respondent.
   Leventkitt, J.

The plaintiff, as tenant, sues the defendant, as landlord, to recover for personal injuries sustained on the premises of the latter. The house was not let to the plaintiff in its entirety, but was apparently a tenement house. There were separate apartments occupied by different tenants, all of whom mutually used the common passageways.

On the evening of April 29, 1899, at about seven o’clock, the plaintiff descended from her rooms on the fourth floor. In stepping from the last step of the stairway leading to the landing on the second floor, the flooring under one of her feet gave way, sending her foot up to the ankle through the boards, and occasioning the injuries for which recovery is sought. The plaintiff had lived in the house since the previous September, had daily ascended and descended the stairs but had never noticed any defect in the landing. It is conceded that there was no hole in the boards and that none of them was loose. It is likewise conceded that no change existed in the original condition of the flooring except an unevenness in the boards resulting from their constant use — the plaintiff’s witnesses testifying that the landing was “walked out a little,” and the defendant admitted that the floor “ was worn down a good deal.” There is no testimony as to the dimensions of the depression, if depression there was.

Both parties examined as a witness the defendant’s carpenter. Called on behalf of the plaintiff, who is, therefore, bound by his statements, he testified that he had on several occasions made repairs on the premises; that about a week prior to the accident he had gone through the entire house with the defendant with a view to finding out what alterations were necessary and advisable; that the defendant showed him where work was to be done and that he himself “ picked out what floors were necessary to be fixed; ” that he examined the landing in question and discovered that it was “ walked out a little ” near the bannister where it was most frequently passed over; that he stamped on the floor “ very hard ” because he was “ trying to make work; ” that although he weighed 225 pounds nothing gave way; that the defendant directed him to smooth out the unevenness as she desired to lay oil-cloth over the boards; and that he repaired this landing as well as three others about a week later — that is, immediately after the accident.

Called on behalf of the defendant, he further testified that the flooring was not rotten; that in his opinion, based on thirteen years experience as a carpenter, he deemed the floor perfectly safe to walk on; and that had he considered it otherwise, he would have placed additional boards over the landing.

Beyond the defendant’s admission, already adverted to, that the flooring was worn, there is no testimony in the case other than that recited bearing on the condition of the second floor hallway.

The justice permitted the case to go to the jury on the theory that inasmuch as the defendant had examined the floor prior to the accident, it became a question of fact for the jury to decide whether she could on such examination have obtained reasonable knowledge of the existence of the defect which apparently caused the accident.” We think this was error, and that a verdict should have been directed for the defendant.

The defendant was not an insurer of the safety of the hallway and was liable only for negligence. A duty rested on her to use reasonable care to'keep the common passageways in repair and in suitable condition for the safe passage of her tenants over it; and for failure to do so she would have been chargeable with liability for injuries suffered by them while properly using it.. McAdam Landl. & Ten. (2d ed.) 610; Peil v. Reinhart, 127 N. Y. 381; Looney v. McLean, 129 Mass. 33. To charge her as landlord, however, it was necessary to show that she had neglected, after having knowledge or notice of a dangerous condition in the passageway, to repair the defect with promptitude, or if she had no such notice or knowledge that she had omitted to use such reason-able means for ascertaining its condition and making such requisite repairs as her duty to her tenants demanded. Henkel v. Murr, 31 Hun, 28.

In the case as it is presented in the record, we find no evidence of omission of duty on the part of the defendant. She could have been liable only after notice of the defect. The testimony offered by the plaintiff established the fact that she had used reasonable means and precautions to ascertain the condition of the hallway and the necessity of repair. The mere fact that change in the landing was subsequently made has no probative value. The body of the flooring may have been perfectly adequate for the purposes of travel and yet its surface not suited to the laying of oil-cloth. To hold the defendant liable on the proof would be, in effect, to hold that the mere making of the examination of the premises was an admission of the necessity for repair.

The judgment must be reversed.

Fbeedmah, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  