
    Mary Aldrich, Appellant, v. John Laul, Respondent.
    Second Department,
    May 1, 1908.
    Landlord and tenant — negligence—injury by fall on stairway—when apartment house not tenement — failure to light hall.
    In an action to recover for personal injuries sustained by a tenant’s wife in falling over a bicycle while descending stairs in the public hallway of an apartment house owned by defendant, where the evidence fails to show that defendant was responsible for the presence of the bicycle, or that it was owned by him or his family, no common-law liability is established.
    A house, occupied by only two families, and having no interior communication or common entrance with an adjoining store, where there is no common right of the families in the house and in the store to the use of “ halls, stairwa3rs, yards, water closets or privies,” is not a tenement house within the meaning of the statute, and the owner is not liable under section 83 of the Tenement House Act for not maintaining lights in the halls.
    To constitute a building a tenement house, within the meaning of the statute, there must be a common right of at least three families occupying the'-building in more than one of the accessories named.
    Where the lease of the plaintiff's husband gave him no right in the yard, the fact that he was permitted to use the same with the two other families does not create a “ common ” right under the statute.
    Appeal by the plaintiff, Mary Aldrich, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 28th day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term.
    
      S LeR. Ackerly, for the appellant.
    
      Clarence Edwards, for the respondent.
   Rich, J.:

The action is to recover for personal injuries alleged to have been sustained by the plaintiff in falling over a bicycle in descending stairs from upper to lower rooms in a public hallway in an apartment house owned by defendant, in which plaintiff’s husband was a tenant, and is predicated upon the failure of defendant to comply with the requirements of section 82 of the Tenement House Act (Laws of 1901, chap. 334), which provides:

“ Public Halls.— In every tenement house a proper light shall be kept burning by the owner in the public hallways, near the stairs, upon the entrance floor, and upon the second floor, above the entrance floor of said house, every night from sunset to sunrise throughout the year, and upon all other floors of the said house from sunset until ten o’clock in the evening.”

The lease under which plaintiff’s husband occupied a portion of defendant’s building states that the former has agreed to take and •hereby does take from the said party of the first part the southerly store and northerly apartment in the building situate on the northeast corner of Grand Street and Court Street, Elmhurst, Borough of Queens, Hew York, for the term of three years with the privilege of two more,” etc., followed by the covenant of the tenant to pay the rent and to keep the plumbing work in the store, pipes, glass, and the premises generally in repair, and to surrender the premises upon the expiration of the term. These are the entire provisions of the lease having any materiality to the issues.

The ground floor of the building consisted of two and possibly three stores or places of business, in the south one of which the plaintiff’s husband conducted a confectionery and ice cream business ; the next one to the north was occupied as a drygoods store by one Beveridge, who used the rear part as a residence for himself and family. The north one was used as a printing shop, but whether attached to or detached from the other two stores does not appear. That portion of the second floor over the drygoods store was occupied by the plaintiff and her husband as a dwelling, and that over the confectionery store by the defendant and his family for living purposes. The second story does not appear to have extended over the printing shop, nor are any other persons shown to have occupied any part of the building. There was a hall on the first floor, between the middle and south stores, leading to the street, on the north side of which a stairway led to a hall in the second story between and dividing the apartments occupied by the plaintiff and her husband on the north side and the defendant and his family on the south side. There was a banister rail on the south side of the stairs. There'was no communication at the time of the accident, and had not been for some time prior thereto, between the hallway on the first floor and any part of the building except the store on the first floor and rooms on the second occupied by the plaintiff and her husband, and the rooms on the second floor occupied by the defendant and his family. There was a gas jet in the lower hall at the foot of the stairs which was connected with the meter used by the plaintiff’s husband. The defendant’s daughters used a bicycle, and it had been left occasionally in the lower hall. It does not appear that it remained there for any length of time or that it was ever seen in the hall except in the daytime. The testimony of the plaintiff tends to show that it was kept upstairs nights and brought down when it was desired to use it — sometimes in the morning and at others late in the afternoon. On one occasion, it does not appear when, after the plaintiff’s husband had made a complaint, he overheard one of defendant’s daughters say to her father: “ Mr. Aldrich wants to have that wheel taken out of the hall before somebody get's hurt.”

On the evening of September Y, 1904, at seven-thirty o’clock the plaintiff passed through the lower hall and observed a bicycle resting against the wall on the south side, away from the stairway; she went to her rooms above, where she remained for a time, and during her absence some one moved it from the position it had occupied when plaintiff passed through the lower hall and placed it upon the stairs. At about eight o’clock the plaintiff in passing down the stairs to the lower floor came in contact with the bicycle and was thrown down, receiving tile serious injuries complained of. Both halls were unlighted and dark. There is no evidence that either of them had been lighted by the defendant at any time.

The evidence does not even suggest that the defendant was in any manner responsible for the presence of the bicycle upon the stairs. It is not shown that it was the same bicycle that was in the lower hall when the plaintiff went upstairs or that it was owned by any member of the defendant’s family. There is no evidence that after the defendant had been advised of the request of Mr. Aldrich that the wheel owned by his daughter should be kept out of the lower hall it was not; no proof that it was ever in the lower hall thereafter. Neither the bicycle causing plaintiff’s fall nor its location upon the stairs is in any manner connected with the defendant or any member of his family. The evidence does not establish a common-law liability of the defendant, and the trial court was justified in refusing to permit plaintiff to go to the jury upon that theory. (Gorman v. White, 19 App. Div. 324; Hilsenbeck v. Guhring, 131 N. Y. 674; Brugher v. Buchtenkirch, 167 id. 153.)

The evidence was not sufficient to have warranted the jury in finding that the defendant’s building was a tenement house ” within the meaning of the statute. (See § 2, subd. 1.) That portion of the building occupied by the families of the plaintiff and defendant was an entire and separate house. Between it and the adjoining store occupied by Beveridge there was no interior communication and no common entrance or exit. Beveridge did not use the hall or stairs used by plaintiff and defendant, and had no rights therein or in any part of the premises occupied by them, nor had they or either of them any rights in the store occupied by him, so that the first statutory essential of three families in one house is lacking. There is no evidence showing a common right off these three families in the halls, stairways, yards, water-closets or privies ” of or connected with the building. The only accessory named in the statute which could be claimed to have established a basis for a recovery is the yard which it is contended was used in common by the three families for drying clothes. The lease to the plaintiff’s husband does not give any right to the lessee therein; it purports to lease only the southerly store and northerly apartment. That his family were permitted to use the yard does not create or establish the “ common right ” required by the statute. The defendant had no access to the yard except through the premises of his tenants, and it is not shown that he reserved this or had any right to it. At the time of the accident and for some time prior thereto defendant is not shown, to have used the yard. The testimony as to any use of it by him or his family is limited to the space above the ground forming the yard, over which a clothes line passed from his rooms in the second story to a pole in the back part of the yard upon which clothes were run out and dried. But conceding that the three families did have a common right in the yard within the meaning of the statute, it would not avail the plaintiff, because it is evident from the language employed by the Begislature that a common right in one of the accessories is not sufficient to constitute the building with which it is connected a tenement house. The statute requires a common right by at least three families occupying the the building “ in the halls, stairways, yards, water-closets or privies, or some of them.” It cannot be held that the Legislature intended that a common right in one of the accessories should be supposed, otherwise it would have said so. It is apparent that the word “some” was not intended to' be synonymous with “any,” and requires a common right by at least three families living in a building in more than one of the accessories named to bring such building within the statutory definition of a “ tenement house.”

The evidence was insufficient to sustain a verdict in plaintiff’s favor, and the learned trial court was not bound to submit any question of fact to the jury; the exceptions do not present reversible error, and the judgment must be affirmed, with costs.

Present — Woodward, Jenks, Hooker, Gaynor and Rich, JJ.

Judgment unanimously affirmed, with costs.  