#### Andrew Bayley, Appellant, *v.*Curtis Brothers Lumber Company, Respondent.

Second Department,

February 28, 1908.

Negligence — injury on defective stairway — constructive notice — contributory negligence.

A defendant maintaining a building for-the sale of lumber who allowed steps unprotected by banisters to become old, cracked and weathér-beaten, so that they broke under the weight of a customer, is chargeable with constructive ■ notice of the dangerous condition, and in an action to recover for injuries so *497. received it is error to dismiss the complaint, if the plaintiff were free from contributory negligence.

A customer who comes on such premises for business at the defendant’s invitation is not, in the absence of any warning, chargeable with contributory-negligence in using such unguarded steps. ,

Appeal by the plaintiff, Andrew Bayley, from a judgment of the Municipal Court of the city of New York in favor of the defendant, dismissing the complaint at the close of the plaintiff’s case.

*Lewis D. Mooney*and *Jeremiah J.*Goughian, for the appellant.

*George F.*Alexander, for the respondent.

Woodward, J. :

The action was brought for negligence. The plaintiff went to the lumber yard of the defendant to buy some mouldings.. These were kept in a separate building to enter ■ which' it was necessary to ascend a short flight of steps. On his return the plaintiff was precipitated to the ground by the breaking of a piece from the second step. The plaintiff testified that' there were no banisters and that the steps were old and cracked and weatherbeaten. That part of the plaintiff’s testimony as to-' his fall and the breaking of the step is corroborated by the defendant’s witness Cheatham who said he heard the step crack and saw the plaintiff fall.

I am of the opinion that the dismissal of the complaint on the ground that the defendant had no notice of the defect was error ; for it seems to me that there was here just such constructive notice as the la w contemplates. That the plaintiff sustained severe injuries which laid him. up for several weeks was not disputed at the trial, and unless contributory negligence on his part was plainly shown it seems to me that the only other question in the case, whether or not the defendant had constructive notice of the defect, was one for the jury. It nowhere appears that the plaintiff was careless or negligent. He was at the defendant’s place on business at the defendant’s invitation, and even though the steps looked old and worn he had the right to úse them when such use was necessary to complete his business without the imputation of negligence. He could not be supposed to anticipate the breaking of the step. Had *498lie been warned or had the steps been protected by a railing the situation would have,been different.

The defendant was in a better position to know the condition of the steps than the plaintiff. The plaintiff was loaded with mouldings and seems to have exercised as much care as a reasonably prudent man would use under the circumstances. The plaintiff is entitled to a hearing before a jury. It would be provocative of much injustice to establish a precedent which would leave without remedy the individual who, with no fault of 1ns own, had sustained injuries in some shop or place of business because, such premises were not kept in that reasonably safe condition which the public has a right to expect.

As was said in *Schnizer*v. *Phillips*(108 App. Div. 17): “ The law is well settled in this State that where a party in possession of premises throws the same open, to the public for the purpose of, gain, lie impliedly warrants the premises to be reasonably safe for the purposes for which they were designed.”

The judgment of the Municipal Court dismissing the complaint should be reversed and a new trial ordered, costs to abide the event.

Hooker, Gaynor, Rich and Miller, JJ._, concurred.

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