
    Helen Schachter, an Infant under the Age of Fourteen Years, by Her Guardian ad Litem, Max Schachter, Respondent, and Max Schachter, Plaintiff, v. Jennie Cohen and Barney Cohen, Appellants.
    First Department,
    January 26, 1940.
    
      William, C. Olsen of counsel (James E. Turner, attorney], for the appellants.
    No appearance for the respondent.
   Martin, P. J.

The infant plaintiff sustained injuries by falling on a stairway in a two-family house, which stairway, it is claimed, was defective. The defendant owners lived on the first floor and rented the second floor to the parents of the plaintiff. The owners made use of the stairway once a year to go to the roof to paint the same and at other times to respond to requests for repairs in the second floor apartment. Otherwise the tenants were the only persons who used the stall way. The record fails to establish that the landlords had control of the stairway in this house, which is not a tenement house, nor does it appear that there was any agreement on the part of the landlords to keep the stairway in repair. Under the circumstances the owners are not liable. (Kisten v. Koplowitch, 207 App. Div. 642; Zolla v. Young Women’s Christian Assn., 250 id. 139.)

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

O’Malley, Townley, Glennon and Untebmyer, JJ., concur.

Judgment, so far as appealed from, and the order unanimously reversed, with costs, and the complaint dismissed, with costs.  