
    Patrick Gorman, Appellant, v. Eleanor White and Others, as Executrices, etc., of Charles White, Deceased, and Mary Reed, Respondents.
    
      Negligence — injury to a tenant on the bach stairs of a tenement house by tripping on a piece of wood — duty of the landlord as to lighting the gas.
    
    Evidence that a woman, whose husband was a tenant in a tenement nouse, about six or seven o’clock in the evening of a day in April, going carefully down a flight of back stairs which led from her apartment to the yard, and which were dark because the janitor of the building had failed to light a gas fixture over the stairs, stepped upon a piece of wood lying upon one of the steps and was thrown down and injured, is insufficient to charge the owners of the tenement house with negligence — the presence of a stick of wood on a stairway not being a probable danger against which the owners of such a building are called upon to protect their tenants by lighting'the gaslight upon the stairway.
    Appeal by the plaintiff, Patrick Gorman, from a judgment of the Supreme Court in fayor of the defendants, entered in the office of the clerk of the county of New Pork on the 15tli day of March., 1891, upon the dismissal of his complaint by direction of the court after a trial at .the New Pork Trial Term. ■
    This action was brought to recover the damages which the plaintiff, a tenant of the defendants, sustained because of the loss of the services of his wife, who, while descending- a stairway in the demised premises, was injured because of the alleged negligence of the defendants.
    
      George William Hart, for the appellant.
    
      E. P. Johnson, for the respondents.
   Parker, J. :

Between the hours of six and seven on the evening of the 29th . day of April, 1893, plaintiff’s wife was proceeding down the back stairs from her apartments on the fourth floor to the back yard for wood. On one side of the stairway was a handrail about eighteen inches from the wall and on the other a partition wall. What happened Mrs. Gorman described as follows: The stairs were so dark I could not see my hand. I had to hold the banister while I was going all the way down. There was no gas lit. There was a gas fixture right over the stairs, but the meter was kept locked by the janitor in a little place in the wall. There was another fixture on the second floor, two flights from the street. During all the time I lived there the janitor had charge of the lighting of the gas. Tenants were not allowed to light it. It was kept locked. The janitor had the key. I had gone down these stairs and reached almost to the turn in the last flight, and was about twelve steps from the bottom of the stairway, when my right foot stepped upon something on tlie stairway and I .fell, and only that I held on to the banisters I would have fallen down. I felt that it was a piece of wood that I stepped on, but did not see it until after the janitor had lit the gas. He came around right after the accident and lighted it. I was holding the banister with my right hand and was going down carefully because it was so dark.”

As soon as the injured woman had told the story of the accident the trial judge advised counsel that without other evidence of negligence there could be no recovery. It being conceded that the plaintiff could not show other negligent acts, whether of omission or commission, the plaintiff rested, whereupon his complaint was dismissed.

The stick of wood carelessly left upon the stairs caused the plaintiff’s wife to fall. The evidence, however, does not even suggest that the defendant is responsible for its presence there. But, urges his counsel, although defendant was not responsible for the presence of the stick of wood on the stairs, and Mrs. Gorman would not have fallen, had she not stepped on it, still she could have seen it and avoided it had the gas in the hall been lighted. True, but the presence of a stick of wood on the stairway was not a probable danger against which the owner was called on to protect his tenants by lighting the gas. The appellant is, therefore, driven to make the claim that a landlord is negligent under all circumstances who fails to keep the halls and stairways of his tenement houses lighted. But in this State the law is settled otherwise. (Halpin v. Townsend, 2 City Court Rep. 417; affd., 107 N. Y. 633 ; Muller v. Minken, 5 Misc. Rep. 444 ; Hilsenbeck v. Guhring 131 N. Y. 674; Jucht v. Behrens, 26 N. Y. St. Repr. 690.)

The Hilsenbeek case was decided after O'Sullivan v. Norwood(14 Daly, 286), which goes farther in the' direction of appellant’s contention than any case we have found.in this State. Indeed, it may be said- that it stands cpiite alone in the position taken by it. But even that case does not assert that the mere failure to. light a hall and stairway constitutes negligence. In that case a part of the stairway was lighted from the street, while the lower step of the second flight was so obscured in darkness as to have induced the plaintiff to- believe that there was no- more steps. This proved a mistake and the result was a fall, an-'injury and a recovery by the plaintiff.

The judgment should be affirmed, with costs.

Vah Brunt, P. J., Rumsey, Williams and Ingbaham, JJ., concurred.

Judgment affirmed, with costs.  