Opinion
October 10, 1949.
In an action to recover damages for personal injuries sustained by plaintiff, judgment dismissing the complaint at the close of plaintiff's case reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. Plaintiff, a tenant of the upper-floor apartment in a two-family house owned by defendant, fell on a stairway leading up to his apartment. The evidence of plumbing repairs in plaintiff's apartment at some time prior to the time of the accident created an issue of fact with respect to defendant's control of the demised premises. ( Reische v. Montgomery, 273 App. Div. 824.) Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.