
    Celia Finkelstein, Respondent, v. Bernard Schlanowsky, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Appeal — judgments and orders appealable — review — from the City Court of city of New York — trial — instructions to jury — review of questions of fact — landlord and tenant — negligence.
    For four years plaintiff’s husband had occupied the basement of a tenement house as a cobbler shop. A stairway, furnishing access to the shop from the street and to no other part of the building, upon which plaintiff was descending, broke and she fell and was injured. The space at the foot of said stairs was intended as a means of access to the shop and not as a separate and distinct part of the premises reserved from the lease. On appeal from a judgment in plaintiff’s favor, held, that a charge to the jury, that if they believed that ash cans were kept at the foot of said stairway, and were taken there by the occupants of the premises' other than plaintiff’s husband, the case was brought within the rule of common use by the other tenants, did not sufficiently instruct the jury that'they must find that the stairway was reserved from the demise for the common use, or that such use was within the knowledge and consent of the landlord, from which such a reservation might be. implied, and the judgment will he reversed and new trial granted.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, second district, entered in favor of the plaintiff upon the verdict of a jury.
    James J. Mahoney (Edward I. Taylor, of counsel), for appellant.
    Charles S. Rosenthal (Leonard F. Fish, of counsel), for respondent.
   Page, J.

The action was brought to recover damages for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant. The plaintiff’s husband leases the basement store of the building, No. 294 Broome street, and maintains a cobbler shop therein. Plaintiff was descending the stairway leading from the street to this basement store, and, when she reached the second step from the bottom, the step broke and caused her to fall, resulting in injuries for which the jury awarded her $200 damages. All the contradicted questions of fact having been resolved in favor of the plaintiff by the 'verdict of the jury, the sole question to be settled on this appeal is the question of liability. The stairway furnished, the means of access to the basement store leased by the plaintiff’s husband, and to no other .part of the building. It would therefore appear to be an appurtenance to the demised'premises. The tenant had occupied these premises for four years, and, as the alleged defect in the stairway had developed within four or five weeks before the plaintiff’s fall, the liability would appear to be on the tenant, and not upon the landlord.- McCallum v. Dodge, 148 App. Div. 86; Kane v. Williams, 140 id. 858; O’Dwyer v. O’Brien, 13 id. 570, 573; Schroeck v. Reiss, 46 id. 502. The respondent claims that- this stairway was used by. the janitress and the tenants of the store for the purpose of carrying ashes to an ash can placed at the foot of the stairs and for the purpose of removing the can when filled. It is to he noted that many .other ash cans were used, this building being a large tenement house, and that they were kept in a place provided by the landlord. The space at the foot of the stairs was variously estimated to be from eighteen inches to two. and one-half feet in width, and was obviously intended merely as a means of access to the basement store and not as a separate and distinct part of the premises that was reserved from the demise. This fact distinguishes the case at. bar from Hammersmith v. Cohen, 132 N. Y. Supp. 323, in which the steps did not lead to the basement store alone, but also to a hall or area which the landlord used to collect the ash barrels for his tenement house, and that these steps were used by the landlord’s janitor for bringing the barrels up and down. The court said: It appears therefore, that they [the stairs] were not only the means of ingress to and- egress from the store leased to plaintiff’s husband, but also to and from a portion of the premises over which the defendant kept undisputed control.” The use of this small space for an ash barrel was not shown to be with the knowledge-and approval of the owner (McCallum v. Dodge, supra), nor was this small space a portion of the premises within the undisputed control of the .landlord.

The learned justice charged the jury that if they believed that the ash cans were kept down.at the foot of those basement steps, and that they were taken down there by the occupants of the premises • other than the. tenant, that would bring it within the rule of being occupied by or used in common by other tenants." This instruction did not sufficiently instruct the jury that they must find that the stairs were reserved from the demise for the common use, or that such use was within the knowledge and consent of the owner, from which such a' reservation might be implied. We note that there have been two trials of this action, on the first of which no evidence of the existence of the ash barrel'at the foot of the stairs or of the use of the stairs by other tenants was offered. And also that between the two trials the opinion in the, case of Hammersmith v. Cohen, supra, was published; The evidence of the existence of these facts is not very convincing to our minds. We feel that the interest of justice will be subserved by a new trial.

Seabury and Lehman, JJ., concur.

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