
    James Brady, Resp't, v. Henry B. Valentine, App'lt.
    
      (City Court of Brooklyn,
    
    
      General Term,
    
    
      Filed January 25, 1893.)
    
    Landlord and tenant—Tenement House—Negligence.
    Defendant was the owner of a tenement house, the banister of the second flight of stairs of which was out of repair, and the second step worn so as to be liable to break off, of all which he had notice. Plaintiff, while visiting his sister, who was a tenant, put his foot on this step, which broke,and he caught the banister,which broke and threw him down stairs. Held, that the jury were justified in finding that his injuries were caused by negligence of defendant and without contributory negligence on his part.
    Appeal from judgment in favor of plaintiff, entered on verdict ior $5,500, and from order denying motion to set aside the verdict and for a new trial.
    
      The defendant, on December 25, 1890, was the owner of a four-story tenement house, No. 253 North Sixth street, in the city of Brooklyn, and was still the owner thereof at the time of the trial of this action, on December 7, 1891.
    The house is a double tenement, occupied by several families.
    The sister of defendant, Mrs. Annie Sullivan, on December 25, 1890, occupied apartments in the fourth or upper st@rv of the building, the defendant reserving control and management of halls.
    The plaintiff, on the last named, day, went to dine with his sister at her said apartments, arriving there about one o’clock p. M.
    After dinner, and at about five o’clock, he left her apartments, and descended the first flight of stairs, lit up partially by the leaving open of the door o£ his sister’s apartments; but finding it very dark when he reached the top of the second flight, he called for a light, and Mrs. Gertrude J. Dana, who occupied rooms at the head of said second flight of stairs, opened her door, procured a lamp, and turned to go into the hall with the lamp, when she saw plaintiff fall to the bottom of the stairs.
    The fall was from the second step from the top of the stairs to the bottom.
    Plaintiff, when Mrs. Dana’s door was opened, started to descend the second flight of stairs, and when on the second step, which was in a worn condition, it gave way under him, and a piece broke from the edge, and plaintiff to save himself from .a fall seized the balustrade, which gave way, and the plaintiff fell to the foot of the stairs, striking upon his head, rendering him unconscious for five weeks, and he has since suffered great pain from the effects of the fall, and has been unable to perform his usual work, and the injuries are permanent to the right eye, and he is likely to lose the sight thereof; also a partial paralysis of the left side, and wasting of the left leg, and other serious permanent disabilities. Plaintiff was never sick, out of work or idle before that time, and subsequent to the injury has not been able to perform marital duties.
    The balustrade was weak and broken at the time of the accident. The defendant’s attention was called to the condition of these stairs ■ on Monday after Thanksgiving before the accident, by Mrs. Dana, one of his tenants, and upon her urging him to repair them, he replied “ he would not fix any more if the whole house fell down and broke their damned necks.”
    
      Goxe & Stratton (H. B. Hubbard, of counsel), for resp’t;
    
      Purring-ton & Shannon, for app’lt.
   Van Wyck, J.

It is established by the evidence, or can be fairly inferred therefrom, that the defendant owned the tenement house mentioned in the complaint; that the halls and stairs thereof were in his charge, care and control; that the banister of the second flight of stairs was badly out of repair, and the second step from the top of that flight had worn so thin as to render it liable to spring and break off under the pressure of the foot, all of which the defendant knew; that the plaintiff and his sister, a tenant in this house whom he was visiting, were not aware of such dangerous condition of this step and banister; that plaintiff, while coming down the stairs, put his foot on this step, which sprang and broke off under such pressure, and when he caught hold of the banister in an effort to save himself, it gave way to such an extent as to throw him down the stairs, inflicting upon him most serious injuries.

We think the court properly submitted the case to the jury, who were fully justified in finding that plaintiff’s injuries were caused by the negligence of defendant, and without contributory negligence of the former. Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913; Laws of 1888, chap. 583, tit. 14, § 26; Willy v. Mulledy, 78 N. Y., 310; McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100.

We see no reason to disturb the verdict on the suggestion that, the weight of evidence is against it, or that the damages are excessive, for the suggestion, in both instances, is unfounded. Error cannot be predicated upon any of the other exceptions called to our attention.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.  