
    Luigi Russo, Respondent, v. Delia McLaughlin, Appellant.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Negligence — Acts or omissions constituting negligence — Use of land, buildings and other structures — Unexpected accidents.
    In the absence of evidence that the owner of a tenement house knew or was chargeable with knowledge of the condition of the rope operating a dumb waiter provided to facilitate deliveries to tenants, he is not liable to one who, while delivering a box of fruit to the occupant of the third floor, is injured by the fall of the dumb waiter occasioned by the breaking of the rope.
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, second district, borough of Manhattan, in favor of the plaintiff.
    Winter & Winter, for appellant.
    Werner & Fox, for respondent.
   Leventbitt, J.

This appeal is taken from a judgment awarding damages to the plaintiff for injuries claimed to have been sustained by him through the negligence of the defendant. The accident resulting in the injuries occurred in a tenement house owned by the defendant. The plaintiff called at the premises to deliver a box of fruit to a tenant who occupied the third floor. He went into the basement and made use of the dumb waiter, which had been provided for the purpose of facilitating deliveries to the tenants. It was operated by means of a rope. The plaintiff placed the fruit on the car, pulled the rope; the car ascended to the second floor; the rope broke; the car fell. It struck the plaintiff and inflicted the injuries. The rope, at the time of the accident, was describe,d as having the appearance of being “torn” and “cut” and “old.” Upon those facts the learned justice held the defendant liable for the consequences. There was not a scintilla of ¿roof .tending to show that the defendant knew or was chargeable with knowledge of the condition of the rope. Without the slightest indication of any neglect on her part, she has been mulcted in damages. The judgment cannot be permitted to stand. Sellers v. Dempsey, 26 App. Div. 22; Turnier v. Lathers, 36 N. Y. St. Repr. 821.

Gildeesleeve and McCall, JJ., concur.

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