
    Lucy S. McGuire, Resp’t, v. Thomas M. Joslyn, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 19, 1890.)
    
    Landlord and tenant—Negligence—Charge..
    Plaintiff was a tenant of defendant, and was injured while descending a common stairway in the building that had no railing; the injury being caused, as alleged, by defects in the matting on the stairway. There was a conflict in the testimony as to the condition of the matting. The court refused to charge, at plaintiff’s request, that if it was in defendant's. power to produce the matting in substantially the condition it was at the time, and he omitted to do so, a similar rule applied as in the case of ai omission to produce a witness, but stated that it was a circumstance to which the jury might give such weight as it was entitled to. Defendant’s counsel then requested a charge that if the matting remained in constant use for two years after the accident, and was then taken up and nailed down on defendant’s veranda, his omission to produce it could not be taken into consideration, which was refused, the court stating that the jury could consider how far that circumstance operated as a reason why it should not be brought in as an exhibit. Held, no error.
    (Macomber, J., dissents.)
    Appeal by the defendant from an order made at Monroe ■special term denying motion for a new trial; also from judgment entered on the verdict
    
      Albert H. Harris, for app’lt; Abraham Benedict, for resp’t.
   Corlett, J.

In September, 1886, the defendant was lessee of a building on the corner of State and Center streets in the city of Eochester, and had control and possession of the same and its stairways under a lease. The plaintiff occupied a portion of the upper part of this building as a tenant of the defendant under an ■oral lease; The way of egress from that portion of the building to the street was a stairway used in common by the tenants and ■occupants of the building. It was for the use of the tenants, and those occupying the building in that capacity had a right to use the stairway. It was alleged on the part of the plaintiff that the defendant negligently permitted the covering of the staircase to remain in such a condition as to be unsafe; that certain matting used upon the staircase was worn, ragged and dangerous; that the stairway was not properly lighted, and that by reason of defects in the matting the plaintiff, without negligence on her part, fell and was injured. The plaintiff’s allegations were denied. A trial was had at the Monroe circuit before a justice and a jury, and the plaintiff recovered a judgment for $1,000. A motion for a new trial was made and denied; judgment was entered on the verdict, and the defendant appealed to this court

The evidence on the part of the plaintiff tended to show that the only way of reaching the street from the upper floors was by passing down the stairway; that there was no railing on the stairs; that the steps were covered with a matting which had been used, and had become so much worn as to be stringy and dangerous; that the hallway was left in total darkness; that on the 18th day of September, 1886, in the early evening, the plaintiff left her room to go down to get some matches; that she proceeded carefully and guided herself by placing her hands upon the wall; that she" reached the landing at the top of the stairs, and in attempting to descend cauglit her foot in the loose ropes of the matting and was thrown violently upon the stairs and received the injuries complained of.

Evidence was given on the part of the defendant tending to controvert the plaintiff’s testimony as to the place of her fall and the degree of care exercised by her, the condition of the hallway and matting, and also as to light and safetjr. The jury found the controverted questions in favor of the plaintiff.

The contention of the appellant is that the court erred in charging the jury in the following particulars: The plaintiff’s counsel asked the court to charge the jury in respect to the matting (which was not produced) that if the jury were satisfied that it was within the power of the defendant to produce it in substantially the condition it was at the time, and omitted to do so, a similar rule applies as in the case of an omission to produce a witness a party has power to produce. The court declined so to charge, but said, “I charge that that is simply a circumstance in the case which the jury may give such weight to as it is entitled to receive.”

The plaintiff also requested the court to charge that if it is in the power of one of the parties to produce evidence in this case and the party fails to produce it, it is a matter the jury may give such weight as they may see fit. The court declined to vary the charge upon that subject. The defendant’s counsel did not except to the above rulings.

The defendant’s counsel asked the court to charge that if the matting remained in constant use for about two years after the accident and was then taken up and nailed down on the defendant’s veranda and used since, his omission to produce it could not be taken in consideration in this case. The court in reply stated that, “ they take that in connection with the suggestion in regard to its not being produced; the jury will consider all the circumstances ; they may say how far the circumstance that.it remained on the stairs some time after the accident operated as a reason why it should not be brought into court as an exhibit in the case.” The defendant’s counsel excepted to the refusal of the court to charge as requested

The charge of the court in response to the plaintiff’s request shows the manner in which the question arose. The charge was that the jury might as a circumstance attach such weight to the omission to produce the matting as it was entitled to receive. The defendant was content with this, as no exception was taken. The defendant’s request, above quoted, assumes as matter of law thatif themattingremainedinconstantuse for about two years after the accident, and was then taken up and nailed down and used since, the omission to produce it could not be taken into consideration. It is easy to see that the length of time and manner the matting was used after the accident might so change its condition as to render an inspection worthless for the purpose of showing the state it was in when the accident occurred. On the other hand, notwithstanding the defects to which the accident is charged, they might be discovered with more or less distinctness on inspection after long use. The court could not say, as matter of law, what 'changes such time and use would produce. In the very nature >of things, the changes which time and use had brought about involve questions of fact. The court, therefore, very properly said that such use and time might be taken into consideration by the jury; but the learned justice was right in refusing to rule, as .matter of law, that those circumstances were so controlling that the non-production of the matting could not be considered. The matting was in possession of the defendant, and it was admissible .as evidence before the jury. The People v. Gonzalez, 35 N. Y., 49; King v. N. Y. C. & H. R. R. R. Co., 72 id., 607.

The evidence on the trial shows that there was a conflict as to the condition of the matting, in reference to which the jury were ■authorized to draw different inferences. An omission on the part •of the person having possession and control of the matting ■ to produce it would be a circumstance which the jury would have a right to take into consideration against him. Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 N. Y. State Rep., 249; Bleecker v. Johnston, 69 N. Y., 309; The Fred. M. Laurence, 13 Fed. Rep., 635; The People v. Hovey, 92 N. Y., 554.

The trial justice was not in error in charging as he did in response to the plaintiff’s request. As above stated, the correctness of his charge on this subject was acquiesced in by the learned counsel for the defendant, whose sole contention is narrowed down to the question as to whether, as matter of law, it was the ■duty of the trial justice to direct the jury that time and use had 'destroyed all the value of the matting as an exhibit.

No error was committed by the court in this respect. No other question being urged by the learned counsel for the appellant, or being presented by the case, the order and judgment must be affirmed.

Dwight, P. J., concurs; Macomber, J., dissents.  