#### Ida Peil, App’lt, *v.*James M. Reinhart, Resp’t.

*(Court of Appeals, Second Division,*

*Filed June 23, 1891.)*

1. Negligence—Landlord and tenant—Care of stairway in tenement.

It is the duty of the landlord of a tenement house, to use reasonable care to keep a stairway, common to the occupants of the building, in proper repair, and for failure to do so, he is chargeable with liability for injuries suffered by them, without their fault, while properly using it for such purpose.

2. Same.

Such liability attaches where the injury was caused by tripping in a ragged carpet, to which the landlord’s attention had been called by plaintiff, and which he had promised to remove.

3. Same—Contributory negligence.

While plaintiff’s previous knowledge of the condition of the passageway may have imposed on her the duty to exercise a greater degree of care, she was not required to desist from using the stairway by reason of the ruptures in the carpet.

Appeal from order of the general term of the city court of Brooklyn, reversing judgment entered upon a verdict in favor of the plaintiff and granting a new trial.

*Ferando Solinger,*for app’lt; *George G. Elliott,*for resp’t.

Bradley, J.

The plaintiff, as tenant of the defendant, occupied some rooms in a tenement house of the latter, and had access to such rooms by means of a stairway common to the occupants of the building.

It appears by the evidence on her part that in descending the stairway in the evening of January 15, 1888, the plaintiff fell and received the injuries complained of ; and that such fall was caused by the defective condition of the stair carpet; that the carpet had been in such condition for several months: and that the attention of the defendant had, in December previous, been called to it by the plaintiff, and he said he would remove it. There was some conflict in the evidence of the parties as to the latter fact and as to the subject of the injury and its cause, but that there were, and for considerable time had been, holes in the stairway carpet, was not seriously questioned.

It was the duty of the defendant to use reasonable care to keep this stairway in repair and suitable condition for the safe passage of his tenants over it in their way to and from their rooms; and *914for failure to do so he was chargeable with liability for injuries suffered by them, without their fault, while properly using it for such purpose. *Looney*v. McLean, 129 Mass., 33; *Lindsey*v. Leighton, 150 id., 285 ; *Donohue*v. Kendall, 18 J. & S., 386; *Neyer*v. Miller, 19 id., 516.

The conclusion was warranted by the evidence that the condition of the carpet was such as to justify apprehension of danger of tripping in passing upon the stairway, and that at the time in question the plaintiff’s foot was caught in a hole in the carpet, thus causing her fall and injury; and that the defendant was chargeable with negligence for permitting it to remain in such condition, and with its consequences to the plaintiff, unless her negligence contributed to the injury which she sustained. It is urged that as she was cognizant of the situation, and the hall of the stairway was well lighted by a lamp, her fall was necessarily attributable to the fault or negligence of the plaintiff.

Her previous knowledge of the condition of the passage-way on the stairs imposed upon her the duty to exercise a greater'degree of care than otherwise may have been required of her in passing over them, but she was not required to desist from using the stairway by reason of the ruptures in the carpet. And while the question may have been a close one of fact it could not properly be held as matter of law that the plaintiff was guilty of contributory negligence; and, therefore, the motion for nonsuit was properly denied. *Palmer*v. *Dearing,*93 N. Y., 7; *Looney*v. McLean, 129 Mass., 33. The question presented would have been quite different if the staircase had been part of the premises demised to the plaintiff. Then the evidence may not have warranted a recovery by her; and many of the cases cited by the defendant’s counsel would have been applicable. But the stairway was not under the control of any of the tenants, but was provided by the defendant for the common use of those having occasion to pass to and from the rooms which they occupied as his tenants. And the weight of the evidence bearing upon the question of negligence of the defendant or of contributory negligence of the plaintiff is not here for consideration. The appeal to the general term having been taken only from the judgment entered on the verdict, presented there for review questions of law only, dependent upon exceptions. To review in general term questions of fact arising upon a trial of an action at law by jury, it is essential that a motion be made for a new trial, at circuit on the minutes or at special term on a case, and that an appeal be taken from the order thereupou made as well as from the judgment, if one has been unqualifiedly entered upon the result of the trial. *Wright*v. Hunter, 46 N. Y., 409. And in such case an order reversing that denying a new trial and granting it is not reviewable in this court. *Harris*v. *Burdett,*73 N. Y, 136. There was no error in the reception of the evidence of the condition of the stair carpet the morning following the injury, as without proof to the contrary it was reasonable to assume that its then condition was substantially the same as at the time in question.

*915The order should be reversed and the judgment entered on the verdict affirmed.

All concur.