#### Margaret Peters, Appellant, *v.*Mary Kelly, Respondent.

First Department,

December 11, 1908.

Landlord and tenant — negligence — injury by fall of landing—duties of landlord — pleading — amendment at trial.

Where a tenant merely rented three second-story rooms in the rear of a house, access to which was had by a passageway from the street and by an outside stairway and along a landing, the landing and stairway are not included in the lease, and the landlord is bound to keep them in suitable repair.

Such duty of the landlord does not rest in contract, but is created by law without special agreement. Hence, when the complaint of one injured by the fall of such landing is based upon the landlord’s negligence, the case is not changed into one upon contract by an amendment stating that the landlord agreed to keep the landing in repair.

Appeal by the plaintiff, Margaret Peters, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of. January, *2911908, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 18th day of February, 1908, denying - the plaintiff’s motion for a new trial made upon the minutes.

*J. Brownson Ker,*for the appellant.

*George H.*Taylor, *Jr.,*for the respondent.

Houghton, J.:

The defendant was the owner of a tenement house in the city of New York, consisting of a brick tenement in front and a small frame building in the rear. Entrance to the rear house was through the hallway of the front house and along the yard. The second story of the rear house consisted of three rooms, access to which was had by an outside stairway and landing. These three rooms were leased to one O’Hara by defendant’s agent. The plaintiff had paid a visit to the tenant’s wife, her sister, and as she was about to depart stepped upon the landing which gave way throwing her to the ground and inflicting the injuries for which this action is brought.

At the commencement of the trial the plaintiff was permitted to amend her complaint by alleging that the defendant, as landlord, retained control of the landings, halls and stairways of the premises in question, and at the suggestion of the court a further amendment was inserted to the effect that the defendant agreed to keep them in repair.

At the close of the plaintiff’s testimony the court dismissed the complaint on the ground that there was no proof that the landlord retained control of the landing which fell. We think the learned trial court took an erroneous view of the evidence. The testimony shows that the tenant’s wife, having seen a notice “ to let ” upon the premises, applied to the defendant’s agent and asked him what rooms he had to let. He said he had-three rooms in the rear house, access to which was through a passageway from the street and by an outside stairway and along the landing to the door. Upon payment of the rent he gave her a receipt to show to the janitress who, he said, would give her the key. This evidence did not-show a *292hiring of the yard adjacent to the house, and the stairway and the landing together with the rooms, hut only a hiring of the rooms themselves. This being so it followed that the landlord retained control of the stairway and landing. Having retained such control it became her duty to exercise reasonable care to keep the stairway and landing in suitable repair for use. *(Dollard*v. *Roberts,*130 N. Y. 269.) This duty did not depend upon contract but was one which the law raised without special agreement, and the second amendment to the complaint suggested by the learned court was unnecessary and did not have the effect of changing the action from tort to contract, for the whole burden of the complaint was negligence on the part of the defendant for failure to keep that part of the premises over which she retained control in reasonable repair.

The plaintiff was lawfully upon the premises and so far as appears exercised due care on her part. She proved a *prima faoie*cause of action and the dismissal of her complaint was erroneous.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.