rental was always collected by the husband and paid directly over to her. The defendant admits that he received the keys from the plaintiff, but says he made the arrangement with the husband and paid the husband. In July, 1910, the plaintiff's husband abandoned her and began a litigation with her and the son, seeking to establish title to the property in himself. That case was decided against the husband. About the same time he instituted habeas corpus to have the custody of the child awarded to him. That matter was decided in her favor, and the custody of the child awarded to her August 26, 1911. There is no pretense that the husband ever rented the premises or received the rent as guardian in socage. Before the abandonment he received the rent as agent for his wife; after that in hostility to her and her son, as the defendant says, under an agreement that "if he lost his case, if he did not hold his property, he would make good to me." It is apparent from this agreement that both expected that, if the husband failed in the litigation, the defendant would have to settle with the plaintiff for the rent, and that the husband would return the moneys he had received and probably take care of the costs. After the determination of the action in her favor, the plaintiff served upon the defendant a notice to vacate the premises or pay the rent. She swears that he said he wanted to remain and agreed to pay her the rent. A lady with her substantially corroborates her statement. The defendant swears, referring to this interview: "I did not tell her that I would pay her the rent. I told her I supposed I would have to pay her now. My idea was that Mr. Anderson had dropped his cases, and I supposed I would have to pay her." He says, also, that he told her he would consult a lawyer before he paid. The lawyer he consulted was the husband's father, who apparently agreed to indemnify him if he would make the payments to the husband. The husband was a director in the bank of which the defendant is cashier. The defendant was evidently working in the interest of the husband against the interest of the wife and the son, and it is going too far to protect him and the husband on the theory now that the rent was paid to him for the son. The plaintiff's evidence that the defendant really was her tenant and understood himself to be such is corroborated by the notice which the defendant served upon her November 1, 1911, that he intended to vacate the house the next Tuesday night. It does not appear that he gave any notice to Ander son. The judge charged the jury that if the defendant knew, at the time plaintiff forbade him to pay the rent to Anderson, that she and her son were the owners of the property, that she could recover from that time. He also charged that they must first find a specific agreement. It is undisputed that the defendant did know at the time. The defendant's claim that he made the original agreement with the husband is not very important, when the fact appears that the rentals were paid. by the husband to the wife, and is entirely consistent with the theory that she was the lessor, and he was simply acting for her. It is not pretended that the husband leased the premises as guardian in socage, or for himself. He was clearly acting as agent for his wife, and hand ed the rent over to her. If, as defendant claims, he made the arrangement with the husband, that does not justify him in continuing to pay the agent after the principal had notified him to quit or pay rent to her, and he had indicated a willingness so to do. He knew the litigations had resulted in her favor, and that rentals were properly payable to her for the benefit of herself and child, whom she was maintaining. The court should not be active in finding a fiction by which to aid them in depriving the real owners of the income of their property. If the defendant is protected by the husband, the action is in effect one between the wife and the husband to determine whether the moneys shall go for the benefit of herself and son, the owners, or be retained by the husband, who has no possible interest therein. I think the evidence clearly indicates that the defendant was the tenant of the plaintiff, if not from the beginning, at least from the time when the notice to quit was served and he gave her to understand that he elected to keep the premises. I think that made a leasing from her at the same terms. He occupying as her tenant, the fact that their infant son owned one-half interest in the property is immaterial, as she clearly had the right to maintain the action. She says he agreed to pay the rent to her, and he says that he told her he supposed he would have to, and he then continued in occupation. It naturally follows that he then became her tenant. The findings of the jury that the plaintiff was not the lessor, and was not entitled to the rent, and that the payments to the plaintiff since the notice were payments of the rent, are against the evidence. I favor a reversal of the judgment upon the law and the facts, and the direction of judgment for the plaintiff for the rent accruing after the notice was served, with interest, and costs in the court below and in this court. (158 App. Div. 299.) HICKS v. SMITH et al. (Supreme Court, Appellate Division, Third Department. July 8, 1913.) 1. APPEAL AND ERROR ($927*)-PRESUMPTION-NONSUIT. On appeal from a judgment of nonsuit, the appellant is entitled to the most favorable inferences that can reasonably be drawn from the evidence, including every fair deduction from the undisputed facts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*] 2. LANDLORD AND TENANT (§ 162*)-COMMON PASSAGEWAY-DUTY OF LAND LORD. A landlord of an apartment house is bound to keep the common hallways and stairways in good repair. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 629; Dec. Dig. § 162.*] 3. LANDLORD AND TENANT (§ 162*)-REPAIRS-DUTY OF LANDLORD. Where a landlord undertakes to make repairs in an apartment house, and permits the same to be occupied by his tenants while such repairs *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes are going on, he is held to a higher degree of care, and is liable for any negligence in making them. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 629; Dec. Dig. § 162.*] 4. LANDLORD AND TENANT (§ 162*)-CONDITION OF PREMISES-LIABILITY OF LANDLORD. A landlord of an apartment house cannot delegate to another his duty to keep the common stairways in good repair, so as to relieve himself from responsibility. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 629; Dec. Dig. § 162.*] 5. LANDLORD AND TENANT (§ 167*)-INJURY TO GUEST OF TENANT. A landlord of an apartment house owes the same duty to guests of tenants as he does to tenants. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*] 6. LANDLORD AND TENANT (§ 169*)-INJURY-SUFFICIENCY OF EVIDENCE. In an action by a guest of a tenant against the landlord for an injury caused by falling down the stairs of an apartment house, evidence held sufficient to take to the jury the question of the landlord's negligence. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 644-646, 664-667, 681-684; Dec. Dig. § 169.*] 7. LANDLORD AND TENANT (§ 169*)-INJURY-CONTRIBUTORY NEGLIGENCEQUESTION For Jury. In an action by a guest of a tenant, for an injury caused by falling down the stairs of an apartment house, against the landlord and a contractor who was making repairs, held, under the evidence, that the question of the contributory negligence of plaintiff was for the jury. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 644-646, 664-667, 681-684; Dec. Dig. § 169.*] 8. NEGLIGENCE (§ 66*)-REPAIR OF BUILDING-LIABILITY OF CONTRACTOR. Where a subcontractor, in repairing a hallway in an apartment building, necessarily rendered it unsafe for travel by night unless it were lighted, and no trap was left there by him for unwary persons to fall into, he was not liable to a guest of a tenant remaining in the building while the repairs were being made; she assuming the risk of ordinary obstruction to the hallway as far as the contractor was concerned. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 86-89; Dec. Dig. § 66.*] Kellogg, Howard, and Woodward, JJ., dissenting in part. Appeal from Trial Term, Saratoga County. Action by Grace E. Hicks against Roy W. Smith and another. From a judgment of nonsuit, plaintiff appeals. Reversed as to defendant Smith, and affirmed as to defendant Johnson. Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ. Robert H. McCormic, of Albany, for appellant. William T. Moore, of Mechanicville, for respondent Smith. HOWARD, J. The defendant Smith is the owner of a building in Mechanicville, the second floor of which was arranged for the occupation of tenants; the defendant himself residing at the time of the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes accident just across a driveway from the building. Extensive alterations were being made, and the front stairway leading from the street to the second story had been removed from the center to the southerly side of the building. The defendant Johnson was a subcontractor doing the carpenter work. The principal contractor had agreed to become responsible for all acts and omissions of himself and the subcontractors. There was a common hallway. This was littered with inortar, material, and such other things as are usual at such times. During the alterations some of the tenants moved out. Two tenants remained. There was a back winding stairway, which had not been removed or molested, and which was used by the tenants while the front stairs were being moved. The common hallway was not lighted, although there was an electric light in one private hallway. At the time of the accident the outline of a person's body could be seen in the hallway, but the floor of the landing could not be seen. A loose doorframe had been left at the top of the front stairs leaning against the wall of the building and projecting out over the edge of the top step. The nosing or tread of the top step had not been put on so that the top of the riser was not covered. There were no lights, barricades, or warnings in the common hallway, and the tenants had never been cautioned not to use the common hallway or the front stairway. Late in the afternoon of October 16th, the day of the accident, the plaintiff entered the apartments of Mrs. Floyd, one of the tenants, going up the front stairway and through the common hallway. Shortly after 7 o'clock she started to leave. Mrs. Floyd, the tenant, and a Mrs. Baxter, another guest, accompanied her. The plaintiff walked slowly and carefully, so she says, and reached the front stairs and descended a few steps. Mrs. Baxter, who was next behind the plaintiff, stepped on something at the head of the stairs, which gave way with her, her left heel caught in something, she stumbled and fell against the plaintiff, and they both fell together to the bottom of the stairs, and were injured. [1] The plaintiff was nonsuited, and is, accordingly, entitled in this court to the most favorable inferences that can reasonably be drawn from the evidence, including every fair deduction from the undisputed facts. Volosko v. Interurban St. Ry. Co., 190 N. Y. 206, 82 N. E. 1090, 15 L. R. A. (N. S.) 1117; Gordon v. Ashley, 191 N. Y. 186, 83 N. E. 686. Assuming, therefore, all the facts proven and all the most favorable inferences that can reasonably be drawn from the evidence, the question arises: Are the defendants, or either of them, liable? [2] Under normal conditions, and independent of any covenant binding him to do so, the landlord of an apartment house is bound to keep the common hallways and stairways in good repair. McAdam on Landlord and Tenant, p. 1233; Dollard v. Roberts, 130 N. Y. 269, 29 N. E. 104, 14 L. R. A. 238; Sciolaro v. Asch, 198 N. Y. 77, 91 N. E. 263, 32 L. R. A. (N. S.) 945. [3] When the landlord undertakes to make repairs or alterations in an apartment house, and permits the same to be occupied by his tenants while such repairs are going on, he is not released from responsibility, but is held to a higher degree of care, and is liable for the negligent way in which such repairs are made. McAdam on Landlord and Tenant, 1254; Sciolaro v. Asch, 129 App. Div. 86, 113 N. Y. Supp. 446. [4] The law imposes these duties upoti the landlord, and he cannot delegate them to others, either under normal conditions or while repairs are being made, so as to relieve himself from responsibility. "One who is personally bound to perform a duty cannot relieve himself from the burden of such obligation by any contract which he may make for its performance by another." Sciolaro v. Asch, 198 N. Y. 77, 91 N. E. 263, 32 L. R. A. (N. S.) 945; Shearman & Redfield on Negligence (5th Ed.) § 14. [5] And the landlord owes the same duty of care to the guests of tenants as he does to tenants. Hilsenbeck v. Guhring, 131 N. Y. 674, 30 N. E. 580. [6] Assuming all the facts, and considering all the inferences arising from the evidence, and applying these well-established rules of law, it seems clear that the landlord, the defendant Smith, was liable. He lived only a few feet away from the building; he permitted his tenants to continue to occupy the building while it was being altered; he had never warned them not to use the common hallway or the front stairway; he received rent; he placed no lights in the common. hallway, and made no arrangements with the contractors to place lights there; he erected no barricades; he permitted the hallway to be littered and obstructed; he did nothing personally, in short, to insure the safety of his tenants and their guests. Had the landlord been put to his defense, perhaps he would have been able to prove his freedom. from negligence; but, as the case now stands, his negligence is apparent. The defendant Johnson, the subcontractor, apparently paid no attention to the tenants, or in any manner considered their safety. He had been working in the building two weeks, and in the common hallway, and it must be presumed that he knew the apartments were occupied. Notwithstanding this, he left the hallway littered and obstructed; he erected no barricade; he placed no light or lantern on the obstacles; he posted no warning notices; he failed to observe the most simple and ordinary precautions-in fact, he did nothing whatever to guard against accidents. Under these circumstances there can be no doubt of his negligence. "The law imposes on a person engaged in the prosecution of any work an obligation to perform it in such a manner as not to endanger the lives or persons of others. 29 Cyc. 425; Wittenberg v. Seitz, 8 App. Div. 439, 40 N. Y. Supp. 899; Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530. * * * " It is the duty of any person making repairs in a common hallway, or passageway, or street, or place where people are lawfully traveling, to take reasonable precautions against accidents. The defendant Johnson seeks to relieve himself from the consequences of this rule by pointing out that there were no contractual relations between himself and the plaintiff; but this duty to be careful does not grow out of a contractual relation. It arises from that basic and necessary regulation of civilization which forbids any person, because of |