
    Lillian Watts, Respondent, v. Jane T. Fitzsimmons and Others, Defendants. Kathryn A. Fitzsimmons, Appellant.
    Supreme Court, Appellate Term, First Department,
    April 10, 1930.
    
      James J. Mahoney, for the appellant.
    
      Charles Marks, for the respondent.
   Per Curiam.

The case was tried below upon the theory that the defendant could be held hable to the plaintiff in tort for breach of an alleged contractual obligation to make repairs. This was error. (Boden v. Scholtz, 101 App. Div. 1; Schick v. Fleischhauer, 26 id. 210; Stelz v. Van Dusen, 93 id. 358.) As to the point made by respondent that the staircase was reserved for the common use of both tenants it suffices to state that the evidence was to the contrary, and that the case was not submitted to the jury upon that theory.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Lydon and Frankenthaler, JJ.  