
    Frieda Frank, Appellant, v. Victor Muller, Respondent.
    
      Negligence — streets — fall upon sidewalk from stepping on banana peel — owner of abutting property not bound to Iteep walk clean — speculation that peel might have been dropped from barrels of refuse removed from building by janitress.
    
    
      Frank v. Muller, 200 App. Div. 639, affirmed.
    (Argued January 24, 1923;
    decided February 27, 1923.)
    Appeal from a judgment, entered April 18, 1922, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while walking on the sidewalk in front of premises owned by defendant slipped on a banana peel and fell, receiving the injuries complained of. There was evidence that tenants in the building were in the habit of throwing orange and banana peels upon the sidewalk; also that upon the morning in question the janitress had taken out some very full barrels of ashes and garbage. The Appellate Division held that failure to clean the walk did not render the landlord liable and that in the absence of evidence that any banana peel slipped from the barrels . there was no proof but merely speculation that the peel upon which plaintiff slipped was there by the affirmative act of the janitress.
    
      Julius F. Newman for appellant.
    
      Moses Jaffe for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Crane, JJ. Absent: Andrews, J.  