
    Lina J. Davenport, Respondent, v. James Matthews and Gardiner D. Matthews, Doing Business under the Firm Name and Style of A. D. Matthews & Son, Appellants.
    Second Department,
    January 26, 1909.
    Negligence — fall of pedestrian into cellarway — evidence — photograph, showing subsequent erection of guards — charge.
    In an action by a pedestrian to recover for injuries received by falling into an open cellarway on. the defendant’s premises a photograph of the cellarway showing guards erected after the accident is inadmissible.
    It is also error to refuse to charge that the guards erected after the accident did not show negligence in not having the guards before the accident.
    Where the cellarway did not extend so far into the highway as to be a nuisance or negligent as matter of law the errors aforesaid are not harmless, and require the reversal of a judgment for the plaintiff.
    Appeal by the defendants, James Matthews and another, doing business under the firm name, etc., from a judgment of.thé Municipal Court of the city of Dew York in favor of the plaintiff, entered upon the verdict of a jury.
    
      Floyd K. Diefendorf , for the appellants.
    No appearance for the respondent.
   Gaynor, J.:

The plaintiff fell from the street into an open cellarway on the defendants’ premises. A photograph of the cellarway with bars along its sides, Which had been put there after the accident, was allowed to go in evidence against the defendants’ objection. This was error, and also the refusal to charge the defendants’ request that the change after the accident did not impute negligence in not having bars before (Corcoran v. Village of Peekskill, 108 N. Y. 151). If the cellarway had been so far out that it could have been ruled to be; a nuisance or negligent as matter of law, the error would be harmless;. but. that was not the case. Counsel for respondent neither submitted a brief nor argued the case.

The judgment should be reversed.

Woodward, Jenks, Rich and Miller, JJ., concurred.

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