Mary Thompson, as Administratrix, etc., of Lucinda Benders, Deceased, Respondent, v. Rebecca Leon, Appellant

Mary Thompson, as Administratrix, etc., of Lucinda Benders, Deceased, Respondent, v. Rebecca Leon, Appellant. Negligence—injury to child on stairway of tenement.- Appeal from a judgment in favor of the plaintiff entered in the New York county clerk’s office on the 23d day of November, 1910, on the verdict of a jury for $1,000 and from an order entered on the 13th day of December, 1910, denying a motion for a new trial. [MAJORITY — Miller, J.:] Miller, J.: The plaintiff’s intestate, a child six years old, was killed by a fall over, or from, the banister of a stairway in the defendant’s tenement house. A witness for the plaintiff testified that about two horns after the accident she found a piece of leather on a nail in one of the treads of the stahway from which the little child appears to have fallen and that that piece of leather fitted the heel of the child’s shoe. The plaintiff draws the inference that the child was going downstairs, caught her heel on the nail, and pitched headlong over the banister. It does not appear how tall the child was, but the banister was thirty inches high. It would, therefore, appear to have been physically impossible for the accident to have happened in the manner claimed, and if there was anything about the construction of the stairs that made the accident possible the plaintiff should have shown it. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Judgment and order •reversed and new trial ordered, with costs to appellant to abide event.