April 7, 1922.
Phillips, Jaffe Jaffe [ D.D. Walton of counsel; Moses Jaffe with him on the brief], for the appellant.
Newman Joseph [ Julius F. Newman of counsel], for the respondent.
The defendant was the owner of a tenement house. The plaintiff was walking along the sidewalk in front of the house and slipped on a banana peel, which resulted in her injuries. The evidence is to the effect that in the evenings the tenants sit out on the front stoop of this tenement house and eat oranges and bananas and throw the peels out onto the walk. The plaintiff on the argument practically admitted that a failure to clean the walk did not render the defendant liable, but that the plaintiff's right of action was against the city, with the possible right of the city to recover over against the owner of the house in case of negligence. This has been so held in a large number of cases both in the Court of Appeals and in this department. In City of Rochester v. Campbell ( 123 N.Y. 405) the rule seems to be so held, and I think it may now be deemed to be established law in this State. The plaintiff, however, would distinguish this case by proof of the fact that upon the morning in question the janitress of the defendant took out some barrels from the basement, which contained ashes and garbage, and that these barrels were very full. The witness who swore to this, however, swore that he did not notice that any of this refuse or these ashes fell off from the barrels upon the sidewalk, so that there is no proof, but merely speculation, that this banana peel upon which the plaintiff slipped was there by any affirmative act of this janitress. An examination of the photographs would seem to indicate what was not brought out very clearly in the evidence, that the stairway to this basement from which these barrels were taken was at one side of the stoop, and the natural place for them to be deposited, to be taken up by the city, was directly upon the edge of the sidewalk directly in front of this basement entrance, while the plaintiff slipped upon a banana peel which was in front of the stoop. This stoop was a wide stoop, probably ten or fifteen feet in width, so that, even if a banana peel had slipped off from one of these barrels, the greater likelihood is that the plaintiff slipped upon a banana peel which had been thrown out by one of the tenants the night before. Moreover, the rule of law as settled by the decisions is that, if an accident happened from one of two causes for either one of which the defendant is not liable, the plaintiff cannot recover. Without any proof that any banana peel slipped off from these barrels, the plaintiff's case would seem not to have been proven. But, if such proof had been made, the greater likelihood, inasmuch as she slipped upon a banana peel in front of the stoop, is that the slipping was caused by a banana peel thrown by these tenants rather than by any banana peel which came from these garbage barrels, so that the plaintiff has failed to establish her cause of action against the owner of the tenement house by her failure to prove that the act of negligence of the janitress was in fact the cause of the accident.
There are other questions in the case. It was clearly error to allow the plaintiff to show that the assistant to the janitress was drunk at the time. Such evidence is not competent evidence upon the fact of the negligent condition of the sidewalk through the affirmative act of the defendant's janitress. The objections to that evidence, however, were not properly stated in a number of cases where this fact was brought out. But that is immaterial in view of the conclusion which I have reached upon the failure to establish the defendant's liability.
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
DOWLING, LAUGHLIN, MERRELL and GREENBAUM, JJ., concur.
Judgment and order reversed, with costs to the appellant, and the complaint dismissed, with costs.