
    John Detviller, Respondent, v. Rolled Plate Metal Company, Appellant, Impleaded with Philip Wagner, Defendant.
    Second Department,
    January 26, 1906.
    Complaint negligence — unguarded elevator shaft — failure to state cause of action against tenant.
    A complaint alleging the negligence of the owner of a building in failing to guard an elevator shaft and the negligence of a joint defendant, who was tenant “ of the second'floor of the premises "above mentioned,” does not state a' cause of action against the tenant when it does not state facts showing that the injury was received on said second floor.
    Appeal by the defendant, the Rolled Plate Met^l Company, from an interlocutory judgment of the Supreme Court in 'favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of July, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the complaint-, on the ground that the complaint does not state facts sufficient to constitute a cause of action against it.
    The complaint in the 2d paragraph alleges that the defendant Vagner owned the' “ premises ” which are then described.
    In the next numbered paragraph it alleges that the corporate defendant was a tenant in possession “ of the second floor of the premises' above mentioned,” and that while plaintiff was “ in said premises, in the act of delivering goods to” the said corporate defendant’he “fell into the elevator shaft in said premises,” and down into the cellar, breaking his legs and receiving other injuries.
    It then alleges in the next two numbered paragraphs that the accident was caused by the negligence of the defendants and each of them, and alleges the negligence to be that the elevator and shaft were constructed without guards, that the approaches thereto were dark and unguarded, and' that they were unprovided with trapdoors “ and other safety devices required by law and ordinances of the City of ¡New York.”
    
      George P. Beebe [Frederick W. Yates with him on the brief], for the appellant.
    
      Francis B. Mullim, for the respondent. ■ '
   Gaynor, J.:

I think the demurrer should have been sustained. Tliecomplaint alleges that the corporate defendant, which demurred* was á tenant ■ of, the second floor of the premises above mentioned,” tlie" said premises being the whole building and lot, as described in the previous-paragraph óf the complaint; There is no allegation in the ■ complaint that the plaintiff met his accident on the second floor, and that fact cahnot be presumed. The liability of the owner, who is tlie other defendant, may be for the whole building; of this tenant, only for his floor. ■ -

The judgment is reversed and the -demurrer sustained, with leave to. plead over. ''

Jeñks, Hooker, Rich and Miller, JJ.* concurred.

, Interlocutory judgment overruling demurrer to complaint reversed, with costs, and demurrer sustained, with costs, with leave to, the plaintiff to plead over upon payment within twenty days.  