Irene De Courcey, Respondent, v. R. U. Delapenha & Co. and Howard F. MeCabe, Appellants, Impleaded with William Edgar MeCabe and Others, Doing Business as Copartners under the Firm Name of Charles P. MeCabe & Son, Defendants

Irene De Courcey, Respondent, v. R. U. Delapenha & Co. and Howard F. MeCabe, Appellants, Impleaded with William Edgar MeCabe and Others, Doing Business as Copartners under the Firm Name of Charles P. MeCabe & Son, Defendants. First Department, November 5, 1915. Negligence — liability of owner, lessee or occupant of premises to keep sidewalk in reasonably safe condition. Where, in an action for personal injuries, it was proved that the plaintiff slipped and fell upon a sidewalk which was dirty, wet and slippery, but there was nothing to show that any act of either of the defendants, lessees of the adjoining premises, contributed to bringing about the condition, it was error for the court to charge that it was the duty of the owner, lessee or occupant of premises abutting upon the sidewalk, to keep the walk in a reasonably safe condition for the use of pedestrians, thus leaving it open to the jury to mulct the defendants in damages for them failure to keep the sidewalk clean and dry. Appeal by the defendants, R. U. Delapenha & Co. and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on or about the 1st day of April, 1915, denying said defendants’ motion for a new trial made upon the minutes. Edwin A. Jones and James J. Mahoney, for the appellants Herman Silverman, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Plaintiff slipped and fell upon a sidewalk in front of certain premises in the city of New York of which defendants R. U. Delapenha & Co. were general lessees, and a firm in which appellant MeCabe was a partner was sublessee of the store and basement. It was attempted by plaintiff to prove, or rather to induce an inference, for of proof there was none, that the sidewalk had been rendered slippery by the act of the defendants MeCabe in permitting butter to melt and run on the walk. As the court correctly said in its charge, there was not a scintilla of evidence that there was any butter or any grease on the sidewalk. All that was proved was that the sidewalk was dirty and wet and slippery, but there was nothing to show that any act of either of the defendants contributed to bringing about that condition. The court charged in plain terms that it was the duty of the owner, lessee or occupant- of premises abutting upon the sidewalk to keep the sidewalk in a reasonably safe condition for the use of pedestrians, thus leaving it open to the jury to mulct the defendants in damages for their failure to keep the sidewalk clean and dry. This was error, and imposed upon the defendants a duty which the law does not put upon them. (City of Rochester v. Campbell, 123 N. Y. 405; Brown v. Wysong, 1 App. Div. 423.) The plaintiff's case was made no stronger by the mtroduction in evidence of the snow and ice ordinance as bearing upon an accident which happened in August. The judgment and order appealed from are reversed and the complaint dismissed, with costs of the action and this appeal to the appellants. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Judgment and order reversed, with costs, and complaint dismissed, with costs.