
    Faustina Savarese, Respondent, v. Louis Frankel, Appellant.
    First Department,
    February 5, 1909.
    Trial— tort — recovery for nuisance under complaint alleging negligence — erroneous charge.
    Where an action against the owner of a tenement house to recover for injuries received by a tenant who fell upon ice which had accumulated in the hallway is based solely upon negligence, it is reversible error to charge-that the jury may find the landlord liable for maintaining a nuisance..
    Appeal by the defendant, Louis Frankel, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1908, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 4th day of May, 1908, denying the defendant's motion for a new trial made upon minutes.
    
      Fdwin A. Jones, for the appellant.
    
      Francis H. Boland, for the respondent.
   Scott, J.:

The plaintiff sued for injuries from a fall -upon ice which had been permitted to accumulate in the public hallway of the tenement house: in which she lived. The cause of the action was based solely upon the alleged negligence, of defendant, who was charged as owner ■ of the premises. He- defended upon the ground that some months prior to the accident he had leased the whole premises-to another. It was claimed by plaintiff that the alleged lease was sham and a mere device to relieve defendant from liability, and the question thus' raised was the one principally litigated upon the trial and dealt with by the -court in the main charge. After the jury had been, charged, and just before they retired to consider their verdict, the plaintiff’s counsel asked the court to charge as follows: I ask the court, as the landlord in this case had rented these premises with a nuisance, which the testimony shows: had existed prior to the making of the lease and continued, and that, he took rent for the premises, that he is responsible if he knew of this condition.” To which the court acceded, saying: “ If he knew of the existence of the nuisance at the time that he made the lease, I so charge.” This was duly excepted to and constitutes reversible error. The complaint charged the defendant with negligence, and the trial proceeded upon that theory. It is the settled rule that judgment can only be rendered in conformity with the allegations and proofs of the parties (Wright v. Delafield, 25 N. Y. 266), and a recovery for creating or maintaining a nuisance cannot be had upon a complaint which alleges only negligence. (Furst v. Zucker, 125 App. Div. 591.)

The judgment and order should be reversed and a new trial granted^ with costs to appellant to abide the event.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  