
    Mary Kane, an Infant, by Her Guardian ad Litem, Respondent, v. Samuel Williams, Appellant.
    Second Department,
    November 18, 1910.
    Negligence — injury by defective handrail — liability as between landlord and tenant.
    Action to recover for personal injuries sustained by the breaking of a defective handrail on the front steps of a house. Judgment reversed for failure of plaintiff to show freedom from contributory negligence or to establish the negligence of the defendant.
    Where the front steps of the' house are in the possession and control of the defendant’s tenant, the defendant himself occupying the basement, the tenant is responsible for the condition of .the railing in the absence of evidence to the contrary.
    Appeal by the defendant, Samuel Williams, from a judgment of the Municipal Court of the city of blew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 28th day of. April, 1910.
    
      Walter Lester Glenney [Frank Harvey Field with him on the brief], for the appellant.
    
      Maurice F. Miller, for the respondent.
   Woodward, J.:

The plaintiff, an infant, has a judgment for $150 for personal injuries alleged to have been sustained through the negligence of the defendant in maintaining a defective handrail in connection with the front steps of a house on Atlantic avenue, Brooklyn. Plaintiff was a visitor at the home of a tenant of defendant, and her version of the accident , is that, she opened the front door, stepped out upon the front steps, brushed against a boy who stood near .the handrail, and that the railing gave way and the boy fell into the areaway, and that she fell down head first on top of him, sustaining injuries. She says she was one foot from the end of the steps, and the story seems highly improbable, for she does not claim to have slipped or to have collided with the boy with any appreciable degree of force. However this may be, the case is barren of all evidence of absence of contributory negligence, and we fail to find any evidence which would charge the defendant. So far as the evidence indicates, the front steps of the premises were in the possession and control of defendant’s tenant, the defendant himself occupying the basement, and in the absence of evidence to the contrary the tenant would be responsible for the condition of the front steps and the railing.

Upon the whole case we are clearly of opinion that the plaintiff failed to establish her cause of action.' The judgment should'be reversed and a new trial ordered, costs to abide the event.

Jenks, Thomas, Bich and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, .  