McAndrew v. 5905 Broadway Realty Corp. , 123 N.Y.S.2d 141 ( 1953 )

Judgment reversed and the third-party complaint dismissed as to the third-party defendant Graphire Corporation. Judgment reversed and a new trial ordered as to defendant 5905 Broadway Realty Corporation. Since the record discloses that the Graphire Corporation as tenant was in possession of the entire premises owned by 5905 Broadway Realty Corp., the structure was not a “ Tenant-factory building” as defined by subdivision 2 of section 315 of the Labor Law, for which the1 owner had a continuing statutory duty to provide proper hand rails and stairways (Labor Law, § 272, subd. 2, read in connection with § 316). Liability of the landlord to the tenant could therefore rest only upon proof of the creation of a dangerous condition in the stairway or railing before the tenant took possession. But the tenant would not share such a liability or be required to answer to the landlord for any such adjudication of damage. On the record before us we treat the verdict charging liability to the landlord as against the weight of the evidence, and we would in any event feel required to direct a new trial because of the statutory theory on which the case was submitted. Settle order on notice. Present — Dore, J. P., Callahan, Breitel and Bergan, JJ.