
    ACKER v. STINER.
    (Supreme Court, Appellate Term.
    December 11, 1906.)
    Landlord and Tenant—Injuries to Tenani^-Action—Evidence—Sufficiency. '
    Where, in an action by a tenant against the landlord, plaintiff’s evidence showed that after a short absence from the premises she was injured by falling into a hole in the basement hallway, and. there was evidence that while she was gone the housekeeper was working in the hallway in or about the hole, a question of fact was presented, and a prima facie case made out, rendering it error to dismiss the complaint
    Appeal from City Court of New York, Trial Term.
    Action by Fannie Acker against Samuel Stiner. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.
    Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
    Samuel Frank, for appellant.
    Nadal & Carrere (William D. Stiger and Harold S. Recknagel, of counsel), for respondent.
   FITZGERALD, J.

Plaintiff, a tenant in a tenement house, went to do some marketing, and upon her return half an hour later claims to have been injured by falling into a hole in the basement hallway near the door of her apartment. Fler husband testified that during the time of his wife’s absence he saw the housekeeper working in the hallway in or about the hole, and later, upon hearing his wife scream, he went out and saw her with one foot in. Hallway was dark. Defendant’s housekeeper was called, but was not questioned about the work he' was doing in the hallway when seen by plaintiff’s husband. If the hall was rendered dangerous by any act on the part of defendant’s servant, and no precaution taken to enable tenants by the exercise of reasonable care to guard against accident, a question of fact was presented and a prima facie case made out, and it was error to dismiss the complaint.

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