
    Kate Walsh, Appellant, v. William A. Frey, Respondent.
    Third Department,
    December 7, 1906.
    Landlord and tenant —injury to tenant from use of balcony otherwise than as intended by landlord —liability.
    While a landlord who reserves the rear balconies of a building for the common use of his tenants as a means of access to their tenements is bound to use. ordinary care to keep them safe for such purpose, -he is not liable for an injury to a tenant caused by the breaking of the railing surrounding such balcony while the tenant was using the balcony in hanging washing on a line which she had put up for her own exclusive use, especially where the landlord has provided a place in the yard for hanging clothes.
    Appeal by the plain tiff, Kate Walsh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 11th d'ay of May,. 1905, upon the dismissal of the complaint by direction of the court, after a trial at the Albany Trial Term.
    The action is for personal injuries. The plaintiff was a tenant in a two-story and basement house owned by the defendant, and occupied the principal or first story and basement. The second' story was occupied by another tenant. There, were back piazzas or balconies on the house, the floor of each of which was level with one of the floors of the house. The second-story balcony was connected by stairs leading to the first-story balcony and from the first-story bálcony steps led to the yard'in the rear of tlie house. The first-story balcony and rear steps were used in common by the ten-' ants in reaching the yard, where were two ■ Woodsheds, one of . which was used by the plaintiff and the other by the tenant on the second floor. The floor of the first-story balcony was seven- feet •from' tlie level of -the ground in the yard. The balcony was inclosed by two two by four-inch rails, one about three feet and the' other about three inches above the floor fastened to upright posts used as supports for the balcony floors. Between the two rails were a series of pickets which were held in position by being nailed to the upper and lower rails: The defendant had. provided pulleys atid hooks in the yard for the use of the plaintiff in hanging up her washings. After residing there two weeks the plaintiff placed pulleys on the uprights supporting the piazza on her- floor without the knowledge or consent of the defendant and hung her clotliesx from lines extending from thes.e pulleys thereafter, and did not use the hooks and pulleys in the yard which the defendant had provided.
    
      Eugene D. Flanigan and Martin A. Springsteed, for the appellant.
    
      William E. Woollard, for the respondent.
   Chester, J.:

It seems to be established by the authorities that where a landlord has reserved to himself for the common use of the tenants of a building any balconies, stairways or.steps he is bound to use ordinary care in keeping them in a reasonably safe and suitable condition for the common purpose for which they were reserved. (Peil v. Reinhart, 127 N. Y. 381; Dollard v. Roberts, 130 id. 269; Clarke v. Welsh, 93 App. Div. 393.) But here while the defendant' had reserved the rear balcony and the steps leading therefrom to the yard for the common use of both of his tenants as a thoroughfare or means of going from their respective tenements to the yard, the injuries which the plaintiff received did not come from any such use of the parts so reserved. She was injured by the rail giving away and precipitating her into the yard as she was leaning upon it while hanging clothes upon the line which she had put up.

Tire tenant of the upper floor never used this line and had no right to its use, as it was put up by and belonged to the plaintiff.' It was not there for the common use of both tenants; nor was it placed there by the landlord. He had on the contrary provided another place for the use of this plaintiff in hanging out her washings and which for reasons of her own she had chosen not to use The use she was making of the piazza when she was injured was not in any sense a common use or as a thoroughfare or right of way, and was not a use available to the other tenant as well as to herself, .but was an exclusive use to suit her own convenience, and unless we are to enlarge or extend the liability of a landlord beyond that • held in any reported case that has been called to our attention this jdaintiff cannot succeed in her action.

The case nearest in point is O Clarke v. Welsh (supra), which .is one where the plaintiff’s intestate while passing along a balcony which had been retained by her landlord for the common use of all his1 tenants, including the deceased, leaned over the railing with her hand upon the same for the purpose of calling to her children who were quarreling in the yard below, when the railing gave way and she. fell to the yard and received fatal injuries. She was using the balcony as a passageway and in a manner which was fairly within the common purpose for which, it was reserved by the landlord for the use of all his tenants, which was not the situation in the case we are now considering.

We think for the reason given that the court was right in directing a verdict for the defendant, and that the judgment entered therein should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting; Cochease, J., not sitting.

Judgment affirmed, with costs.  