
    Minnie Decker, Respondent, v. Rubin Osterweil, Appellant.
    Second Department,
    May 26, 1911.
    Landlord and tenant — negligence — injury by defect in premises — trial — erroneous charge — failure to except.
    In an action by a tenant against his landlord to recover for injm'ies alleged to. have been caused by a defective beam upon the roof of the leased premises, a tenement house, the burden is on the plaintiff to show . either the landlord’s knowledge of the defect or that it existed for such time that the landlord should have known of it.
    It is reversible error in such a case to charge that the jury must find for plaintiff if the premises on the day of the accident were in a dangerous condition and plaintiff was free from contributory negligence.
    A new trial will be ordered under the circumstances, even though there was no exception to the charge.
    ■ Appeal by the defendant, Rubin Osterweil, from a judgment of the Municipal Court of the city .of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of February, 1911.
    
      Edgar J. Treacy [Abram I. Elkus and Samuel Greason, Jr., with him on the brief], for the appellant;
    
      Harrison C. Glore, for the respondent.
   Per Curiam:

This appeal is by the defendant from a judgment of the Municipal Court. The action is by tenant against landlord for personal injuries due to a defective beam upon the roof of a tenement house, which tilted when the tenant, stood upon it to hang out clothes. It was incumbent upon the tenant to establish either the landlord’s knowledge of the defect or the existence of the defect for such time that' the landlord should have known of it. (Idel v. Mitchell, 158 N. Y. 134.) But the court instructed the jury that, if they found that the premises were in a dangerous condition, on the day of the accident (and no contributory negligence), they “ must find for the plaintiff.” This instruction, of course, permitted the jury to charge the landlord upon proof of the mere existence of the defect as if an insurer.

And this was the final instruction in the case, following directly upon denial of the request for an instructioiij except. as already charged, that the defendant Would not be liable if the jury believed that no notice of the defect was given to him. We cannot find that the court had theretofore charged the rule of liability as different, but on the contrary that it had charged that if' the roof or place where the implied invitation was extended “was in a dangerous condition upon the day ” the tenant went there, then the other proposition in the case was that of contributory negligence. The request refused was not strictly accurate because the defendant might be cast in liability without “notice,” as the word is commonly understood, i. e., by knowledge,, or by such lapse of time as would warrant the imputation of legal knowledge; and it is true that the exception was to the refusal, but, nevertheless, we think .that justice requires a new trial, which we may order' even without the existence of an exception.

Without passing upon the merits-of the case, we reverse the judgment and order a néw trial, costs to abide the event.

Jerks, P. J., .Thomas,'Oarr, Woodward and Rich, JJ., concurred.

Judgment and order of the' Municipal Court reversed and new trial ordered, costs to abide the event.  