#### Celia Finkelstein, Appellant, *v.*Bernard Schlanowsky, Respondent.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Negligence — affirmance of judgment after third trial.

While plaintiff was going down steps leading to a store of which her husband was the tenant, one of the steps broke and she fell. On the first trial of her action against the landlord for personal injuries, her husband testified that more than a month prior to the accident he called defendant’s attention to the step, which was then broken, but there was no evidence that there was an ash barrel, used by the janitor of the building, at the foot of the steps. After a second trial, a judgment in plaintiff’s favor was reversed because the use of a small space for an ash barrel was not shown to be with the knowledge or approval of the landlord. Held, that as on the third trial it appeared that defendant’s agent made use of the ash barrels, it was technically erroneous to dismiss the complaint, but, in view of the general conduct of the case and the production of testimony after opinions of the court, an affirmance of a judgment for defendant would best serve the ends of justice.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, second district, rendered in favor of the defendant and against the plaintiff after a trial before the justice and a jury.

Charles S.„ Rosenthal (Leonard F. Fish, of counsel), for appellant.

James J. Mahoney (Edward I. Taylor, of counsel), for respondent.

*48Gerard, J.

Action for personal injuries. Plaintiff’s husband is lessee from defendant lessor of a basement store with steps leading to the street. Plaintiff testified that while descending the steps, one of them broke, causing her to fall. Her husband testified that four or five weeks before the accident he called the landlord’s attention to this step which he says was then broken. There was evidence that there were ash barrels at the foot of the steps which the janitor of the building used for other tenants of the building. This was the third trial of this cause. At the first trial there was no evidence of the existence of the ash barrel at the foot of the *steps;*thereafter the opinion in Hamersmith v. Cohn, 132 N. Y. Supp. 323, was published. After the second trial a judgment for plaintiff was reversed because “ the use of this small space for an ash barrel was not shown to be with the knowledge or approval of the owner ” and because the court did not sufficiently instruct the jury that to make the landlord liable they must find that the stairs were reserved from the demise (to plaintiff’s husband) for the common use or that such use was with the knowledge and consent of the landlord. Finkelstein v. Schlanowsky, 76 Misc. Rep. 500. Here we find testimony that the janitor (defendant’s agent) made use of the ash barrels. In view of this testimony it may have been a technical error to dismiss the complaint, but in view of the general conduct of this case and the production of testimony after opinions of the court, it would seem that an affirmance would best serve the ends of justice.

Seabuby and Guy, JJ., concur.

Judgment affirmed, with costs.