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First Department, November, 1911.

(Vol. 146.

EMMA MARINGER, Respondent, v. HENRY L. HILL, Appellant.

First Department, November 3, 1911. Landlord and tenant - negligence - injury to tenant through slipping

on grape skins — when no constructive notice to landlord - failure to light hallway in tenement.

Where in an action by the lessee of an apartment in a tenement house

against her landlord to recover for personal injuries received owing to the fact, as alleged, that she slipped upon a grape skin which had been left upon the stairway, it appears that the janitress employed by the defendant having seen boys eating grapes while coming down the back stairs at two o'clock in the afternoon found and picked up grape skins on the main stairway, but it appears that after three o'clock on the same day a daughter of another tenant and a companion also threw grape skins on the front stairs, it is error to permit the jury to find the defendant neg. ligent because of the presence of the grape skins on the theory of constructive notice, there being no evidence of actual notice to him or to his janitress as to the grape skins thrown upon the stairs after three

o'clock. Where the court erroneously allowed the jury to find the defendant neg.

ligent because of the presence of the grape skins and also properly permitted them to find the defendant liable for his failure to light the public hallway between sunset and sunrise, as required by the Tene. ment House Act, a judgment for the plaintiff will be set aside and a new trial granted, for it cannot be determined upon which issue the verdict

for the plaintiff was rendered. DOWLING, J., dissented.

APPEAL by the defendant, Henry L. Hill, 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 23d day of December, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 29th day of December, 1910, denying the defendant's motion for a new trial made upon the minutes.

Theodore II. Lord, for the appellant.

Charles Goldzier [Moses H. Grossman with him on the brief], for the respondent.

LAUGHLIN, J.:

On the 29th day of September, 1908, the plaintiff and her husband were lessees of an apartment on the third floor of a

App. Div.]

First Department, November, 1911. five-story tenement house, having five apartments on each floor, at No. 940 East One Hundred and Sixty-fifth street, borough of the Bronx, New York, owned by the defendant; and at about seven minutes after six o'clock in the evening of that day, while starting from the upper landing to pass down the first flight of stairs, she slipped on a grape skin which was on the landing near the head of the stairs, and fell and sustained injuries, to recover for which this action was brought.

The negligence charged in the complaint is failure to light the public hall between sunset and sunrise, and to keep the stairs clean and free from accumulation of dirt, filth, garbage and other matter, as required by the provisions of chapter 33+ of the Laws of 1901, known as the Tenement House Act.

The accident occurred after sunset, and the public hall was not lighted. The court properly submitted to the jury the questions with respect to the liability of the defendant for his failure to comply with the requirements of the law in that regard.

With respect to the liability of the defendant for the accident, if due to the presence of the grape skin on the landing near the head of the stairs, the court instructed the jury that the landlord was not expected to have some one in the house the entire time watching for any slight object that might drop on the stairway, but was expected to use such care as an ordinarily prudent person having charge of such a building would use, and that it was his duty to use reasonable care in inspecting the public stairs and floors, with a view to removing any. thing that might be deposited there, which would endanger the safety of people using the stairs.

The defendant had a janitress in charge of the building, whose duty it was to light the lights and keep the public stairs and floors clean as required by law. The janitress was called as a witness by the plaintiff. She testified that shortly after two o'clock in the afternoon of the day of the accident, on looking out through the window of her kitchen, she “saw two little boys eating grapes and throwing the skins down coming down on the back stairs leading into the air shaft,” and that she thought that “the children may have done the same thing down the stairs," and so a few minutes afterwards she went up to the fourth floor and found and picked up grape skins

APP. Div.-VOL. CXLVI. 46

First Department, November, 1911.

[Vol. 146. all the way; that she picked up all that she saw, and that she intended to get a broom and sweep down the stairs to be sure of getting all the grape skins, but that she was interrupted by one of the tenants and she then forgot to do so; and that she swept down the stairs at the place where the accident occurred every morning. The plaintiff testified that after falling she looked and saw a squashed grape skin on the landing near the head of the stairs, and it is claimed that she slipped on that grape skin. A girl fourteen years of age, a daughter of one of the tenants of this building, called by the plaintiff, testified that “after three o'clock,

* about three o'clock” in the afternoon of the day of the accident, she and a girl friend were coming down the stairs, and that her girl friend was eating grapes and “throwing down the skins."

The court left it to the jury to determine whether or not the janitress picked up all the grape skins that were on the stairs and landing at the time to which her testimony relates, and also to determine whether or not, if plaintiff slipped on a grape skin dropped on the landing after the time the janitress picked up the grape skins, the defendant or his servants knew or should have known that the grape skin was there and was dangerous to a person passing up or down the stairs, and permitted the jury to predicate a verdict upon the negligence of the defendant with respect to the grape skin, regardless of the question of negligence with respect to lighting the hall. At the close of the charge counsel for the defendant requested the court to instruct the jury as follows: “Negligence in this case cannot be predicated upon the presence of the grape skin on the stairway, on which it is alleged Mrs. Maringer slipped.” This request was denied, and an exception was duly taken, and counsel for the defendant also excepted to the charge " as modified” with respect to his requests, evidently intending thereby to except to the charge on this subject, for it would seem that the court had his requests before charging the jury.

We are of opinion that the court erred in permitting the jury to find the defendant guilty of negligence with respect to the presence of the grape skin on the stairs; and since in the form in which the verdict was rendered it cannot be said upon which theory the jury determined the issues the defend

App. Div.]

First Department, November, 1911. ant is entitled to a new trial. If it appeared or could be determined from the evidence that the accident was due to a grape skin dropped on the landing by the girl friend of the daughter of a tenant at about or after three o'clock in the afternoon, we are of opinion that the jury should not have been permitted to hold the defendant liable on the theory of constructive notice. There was no evidence of actual notice to the defendant or his janitress with respect to the grape skins thrown upon the floor and stairs after three o'clock, and it would be unreasonable to hold the defendant liable for failing to inspect the stairs and landing between that hour and the time of the accident, for that would impose too onerous a duty on the part of owners of tenement houses. The stairs had been swept that morning, and in the absence of notice that they had been obstructed or rendered dangerous by tenants or third parties in the meantime, there was no duty on the part of the defendant to further inspect between the time the janitress picked up the grape skins and the time of the accident. If, on the other hand, it appeared, or could be determined with any degree of certainty from the evidence, that the plaintiff slipped on a grape skin that was on the stairs when the janitress picked up grape skins, and that the janitress was negligent in not picking them all up, then the defendant might be held liable on that theory; but on the record before us on this appeal there is not even a foundation for a reasonable guess as to whether the grape skin on which the plaintiff slipped is one that was on the landing or stairs when the janitress picked up all she found, or whether it was one deposited there later.

We are, therefore, of opinion that the defendant was entitled to have the jury instructed as requested in the charge, which was refused.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

INGRAHAM, P. J., CLARKE and Scott, JJ., concurred; DOWLING, J., dissented.

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

First Department, November, 1911.

(Vol. 146.

JEFFERSON D. BREMER, Appellant, v. CHARLES E. Ring,

Respondent.

First Department, November 3, 1911.

Pleading-action on account stated - allegation as to non-payment

– attachment proof of non-payment not necessary action by assignee - allegations as to counterclaims of defendant known to assignee - corporation-action by assignee of foreign corporation defenses - authorization of assignor to do business here.

In an action to recover a sum of money upon an account stated it is nec

essary for the plaintiff to allege non-payment; but as this is a mere rule of pleading and because payment must be pleaded as a defense, a denial of the plaintiff's allegation does not make payment an issue and forms an exception to the rule that a denial of the material allegation puts the

same in issue. In an action to recover a specific sum of money due on contract, as distin.

guished from an action to recover a balance due, where the complaint declares generally on an indebtedness, it is sufficient for the plaintiff to

allege non-payment without giving proof thereof, Payment is not presumed, being a matter of defense. An action on an account stated is an action to recover a specific amount although the account was of a balance found due. Hence, where the complaint in such action alleges that the sum is due and owing, a warrant of attachment will not be vacated because the plaintiff failed to

present proof of non-payment. In an application for a warrant of attachment in an action by the

assignee of an account stated, he need only show that he is entitled to recover over and above all counterclaims known to him; he need not show that he was entitled to recover over and above all counterclaims

known to his assignor. One suing on an account stated as assignee of a foreign insurance corpora

tion need not, in order to obtain an attachment, show that the assignor was authorized to do business in this State, or that the defendant, the insurer's agent, was not prohibited from acting as its agent here, where it does not appear from the complaint that the action is based upon a contract prohibited by our laws, or where the letter appointing the defendant as agent was delivered. These are matters of defense, and

are not part of the plaintiff's case. Section 15 of the General Corporation Law, prohibiting actions in this

State by foreign stock corporations doing business here without being licensed to do so, relates only to actions upon contracts made in this State.

APPEAL by the plaintiff, Jefferson D. Bremer, from an order of the Supreme Court, made at the New York Special Term and

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