Opinion
October 21, 1940.
In an action by a tenant to recover damages for personal injuries sustained by reason of alleged negligence of the landlord in improperly repairing a top step or landing of a stairway which was under the sole control of plaintiff, judgment for plaintiff reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Appeal from order denying motion for a new trial dismissed, without costs. Plaintiff's proof is that the hole in the rubber mat which was the cause of her fall was there to her knowledge both before and after the gratuitous repairing by defendant. Thus, even though there was misrepresentation and incomplete repair, there was no reliance by plaintiff upon the landlord's assurance in so far as the cause of plaintiff's fall is concerned. The incomplete repairs had nothing to do with the condition which caused the injury. Under such circumstances there can be no recovery. ( Kirshenbaum v. General Outdoor Adv. Co., 258 N.Y. 489.) Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.