#### Mary E. Sullivan, Respondent, *v.*New York Telephone Company, a Domestic Corporation, and Percy Barr, Doing Business as Barr & Company, Appellants.

First Department,

July 10, 1913.

negligence — duty of lessee of public telephone to persons using same — injury by fall through trap door— when telephone company leasing telephone for public use not liable for negligence of lessee.

Action to recover for personal injuries. The plaintiff, seeing a public telephone sign on the premises of a storekeeper, the defendant, entered and used the same, and while leaving the instrument to pay the toll feE *643through, an open trap door within a few feet of the telephone. Plaintiff contended that she was not aware of the fact that the trap door had been open while she was at the telephone, while the defendant gave evidence that she had been warned that it was to be opened, etc. On all the evidence, held, that the jury were justified in finding the defendant negligent and the plaintiff free from contributory negligence.

As the defendant was the lessee or bailee of the telephone under a contract entitling him to a percentage of the tolls received, but reserving ownership in the telephone company, with a right of access for inspection and repairs, etc., it was his duty in permitting patrons to use the telephone to exercise reasonable care to maintain his premises in a reasonably safe condition.

The defendant telephone company, however, although entitled to share in the profits arising from the use of the telephone, was in no manner interested with the lessee in the use of the premises which were in his exclusive possession save as to the company’s right of access for repairs or removal, and, hence, it is not hable as a matter of law for the negligence of the defendant in leaving the trap door open.

Separate appeals by the defendants, the New York Telephone Company and another, 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 13th day of January, 1913, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 11th day of January, 1913, denying defendants’ respective motions for a new trial made upon the minutes.

*Arnold W. Sherman,*for the appellant New York Telephone Company.

*David V. Cahill,*for the appellant Percy Barr.

*Abraham Benedict [Charles S. Guggenheimer*with him on the brief], for the respondent.

Laughlin, J.:

On the 29th day of November, 1910, the plaintiff, while passing along Forty-second street, observed the usual “Blue Bell ” sign, so called, for a public telephone in the window on the street or ground floor of premises known as No. 3 East Forty-second street, in the borough of Manhattan, New York, occupied by the defendant Barr as a shoe store, and she entered for the purpose of telephoning and was directed by Barr to the *644telephone, and, after using it and while passing toward the desk of the cashier to pay the charges, she stepped into an opening in the floor within a few feet of the telephone, caused by one of Barr’s employees lifting a trap door, which had been constructed in the floor some two years after the telephone was installed, leading to the basement, while she was using the telephone, and she sustained injuries, for which she has recovered against both defendants. There is a conflict in the evidence bearing on the negligence of the defendant Barr, and there may be said to be a conflict in the evidence with respect to the existence of proper care by the plaintiff.

The testimony of the plaintiff tends to show that in going to the telephone she passed over or in the vicinity of the trap door, and that there was no visible evidence of danger; that she was not aware of the fact that the trap door was opened while she was at the telephone, and that she did not observe it before stepping into it.

On the part of the defendant Barr testimony was given tending to show that an announcement was made in her presence and hearing that the trap door was about to be opened, and that the opening was plainly visible from the position she occupied, and that she would have seen it had she exercised ordinary care. The evidence on those issues presented fair questions of fact for the consideration of the jury, and we think an appellate court would not be justified in ruling that it does not preponderate in favor of the plaintiff.

The telephone was installed pursuant to a request in writing made by the defendant Barr, therein designated as “The Subscriber,” which was accepted by the company on the 31st day of January, 1906. The subscriber thereby requested, in effect, that the company establish at his store “ a Public Telephone Pay Station ” and maintain the same and the wires connecting it with the company’s exchange, and furnish service to him for the period of six months from the first day of the month following the connection of the station and thereafter until the contract should be terminated as therein provided; and he agreed to pay to the company eighty per cent of all tolls charged by it for messages from said station, with the proviso that his proportion of the toll on any message should not exceed five *645cents. The request for the installation of the telephone was evidently made on a blank provided by the company. The terms of the request indicate that it was contemplated that the company should keep an account of the messages sent from said station and render monthly statements thereof, and that the tolls collected by the subscriber should be at rates established by the company, and that he should conspicuously display such sign or signs as the company might furnish; that all signs, booths or other equipment furnished by the company should remain its property and should be returned to it whenever requested in as good order as reasonable wear and tear would permit; that the company should have access thereto at all reasonable hours for the purpose of inspecting, repairing and removing the line, instruments or other equipment, and that either party might terminate the contract at any time after the expiration of six months on serving ten days’ previous notice in writing. The printed conditions annexed to the request made by the subscriber recite that the telephones to be furnished are the property of the American Bell Telephone Company and are to be constructed and used under its patents, and are leased and licensed by said company for the use therein specifically allowed, and that the subscriber was to pay five dollars for each telephone destroyed otherwise than by unavoidable accident, and ten dollars per month in case a telephone should be removed or detained without authority until its destruction or loss without his fault should be satisfactorily proved.

It follows from these provisions that the defendant Barr had a direct interest in the use of the telephone and had possession thereof as lessee or bailee. It was his duty, therefore, in inviting and permitting patrons to use the telephones to exercise reasonable care to maintain his premises in a reasonably safe condition. (Clussman *v. Long Island R. R. Co.,*9 Hun, 618; affd., 13 N. Y. 606.) The evidence fairly shows that he was guilty of a breach of his duty and the jury, therefore, properly found that he was guilty of negligence and liable to the plaintiff.

There is, however, no basis for the recovery against the telephone company. It was not in possession of the premises (See *Clussman*v. *Long Island R. R. Co., supra);*and although it *646shared with the defendant Barr in the profits arising from *the use of the telephone*it was in no manner interested with him *in the use of the premises,*which were in his exclusive possession with the exception that the company reserved the right of access to the telephone for the purpose of repairs or removal. The trap door was not opened in connection with *the use of the telephone*or in the business of furnishing telephone accommodations to the public, in which Barr and the company were jointly interested. It was opened *solely in conducting the business of the defendant Barr*as a dealer in shoes by one of his employees to obtain access to the basement, where shoes were stored, with a view to exhibiting stock therein stored to a customer.

In *Clussman*v. *Long Island R. R. Co. (supra),*where a passenger was injured by a defective platform over which he was passing to a telegraph office which was maintained jointly by the telegraph company and the railroad company, which makes the case quite analogous to this, the court at General Term, on holding the railroad company liable, expressed the opinion that the telegraph company was under no obligation to keep the station in repair.

In *Thomas*v. *Springer*(134 App. Div. 640), where a person attending a theatre, owned by the defendant but leased to a theatrical company for the evening for a percentage of the gross receipts, was injured by an object dropped from the balcony by one who was in the employ of the defendant generally, but who was paid for his services that evening by the theatrical company, it was held that the percentage of the receipts received by the owner was not received as a share of *profits*for his contribution to a joint enterprise, but as compensation for the use of the theatre, and that the defendant and the theatrical company were neither copartners nor joint adventurers, although he advertised himself as manager and proprietor of the theatre and retained possession thereof and invited the public to attend and had charge of the selling of tickets of admission.

In *Laguttuta*v. *Chisolm*(65 App. Div. 326), where the plaintiff was bitten by a watch dog owned and maintained by the defendant Wilson upon premises owned by the defendant *647Chisolm, who had made an arrangement with Wilson by which the latter should rent the yard and stalls in stables on the premises and after deducting thirty per cent of the proceeds for his services was obligated to pay the balance to Chisolm, this court held that Wilson was managing the property for himself, and- that the proportion of the receipts paid to Chisolm represented compensation for the use of his property, and that Chisolm was not liable for Wilson’s' acts.

No authoritative precedent precisely in point has been found, but we are of opinion that as matter of law the telephone company is not liable, and the three decisions which we have considered briefly are somewhat analogous and tend to support this view.

At the close of the plaintiff’s case counsel for the telephone company moved to dismiss the complaint on the ground, among others, that it was not shown guilty of negligence, and duly excepted to the refusal of the court to grant the motion. It then withdrew from the case without introducing any evidence until the submission to the jury, in which it took part.

We are of opinion that the court erred in denying the motion for the dismissal of the complaint as to the defendant telephone company, and, therefore, pursuant to the provisions of section 1317 of the Code of Civil Procedure (as amd. by Laws of 1912, chap. 380), the judgment and order are reversed, with costs as to it, and judgment dismissing the complaint, with costs, is ordered on the motion of the defendant company for that relief on the trial, and the judgment and order are affirmed, with costs, as against the defendant Barr.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

As to defendant telephone company, judgment and order reversed, with costs, and complaint dismissed, with costs; and judgment and order, affirmed, with costs, against defendant Barr. Order to be settled on notice.