December 7, 1906.
Eugene D. Flanigan and Martin A. Springsteed, for the appellant.
William E. Woollard, for the respondent.
It seems to be established by the authorities that where a landlord has reserved to himself for the common use of the tenants of a building any balconies, stairways or steps he is bound to use ordinary care in keeping them in a reasonably safe and suitable condition for the common purpose for which they were reserved. ( Peil v. Reinhart, 127 N.Y. 381; Dollard v. Roberts, 130 id. 269; Clarke v. Welsh, 93 App. Div. 393.) But here while the defendant had reserved the rear balcony and the steps leading therefrom to the yard for the common use of both of his tenants as a thoroughfare or means of going from their respective tenements to the yard, the injuries which the plaintiff received did not come from any such use of the parts so reserved. She was injured by the rail giving away and precipitating her into the yard as she was leaning upon it while hanging clothes upon the line which she had put up. The tenant of the upper floor never used this line and had no right to its use, as it was put up by and belonged to the plaintiff. It was not there for the common use of both tenants; nor was it placed there by the landlord. He had on the contrary provided another place for the use of this plaintiff in hanging out her washings and which for reasons of her own she had chosen not to use The use she was making of the piazza when she was injured was not in any sense a common use or as a thoroughfare or right of way, and was not a use available to the other tenant as well as to herself, but was an exclusive use to suit her own convenience, and unless we are to enlarge or extend the liability of a landlord beyond that held in any reported case that has been called to our attention this plaintiff cannot succeed in her action.
The case nearest in point is Clarke v. Welsh ( supra), which is one where the plaintiff's intestate while passing along a balcony which had been retained by her landlord for the common use of all his tenants, including the deceased, leaned over the railing with her hand upon the same for the purpose of calling to her children who were quarreling in the yard below, when the railing gave way and she fell to the yard and received fatal injuries. She was using the balcony as a passageway and in a manner which was fairly within the common purpose for which it was reserved by the landlord for the use of all his tenants, which was not the situation in the case we are now considering.
We think for the reason given that the court was right in directing a verdict for the defendant, and that the judgment entered therein should be affirmed, with costs.
All concurred, except KELLOGG, J., dissenting; COCHRANE, J., not sitting.
Judgment affirmed, with costs.