I dissent. . The complaint in this action not only fails to allege that the premises upon which plaintiff was injured was a tenement house, but on the contrary alleges that it was *461a steam-heated apartment or flathouse. Under the law in force at the time when plaintiff’s canse of action, if any, arose (Tenement House Act [Laws of 1901, chap. 334], § 2) there was a distinction between a tenement house and an apartment house. (Grimmer v. Tenement House Department, 204 N. Y. 370.) The evidence that was offered tending to establish that the tenement house department had claimed jurisdiction over the building where the accident happened was seasonably objected to, and under the allegations of the complaint was incompetent. But in addition it was insufficient to establish that the house was a tenement house within the definition of the statute. The most that can be said with regard to it is that the tenement house department assumed to exercise jurisdiction over it to the extent of entertaining complaints for alleged violations of the provisions of the Tenement House Act. There is no evidence that any action was taken upon these complaints, nor any attempt made to enforce the penalties provided in the act. If any inference can be drawn from the testimony, it is that the tenement house department concluded that it had no jurisdiction in the matter. In the prevailing opinion in this court reference is made to section 21 of the Tenement House Law. Apparently this is a reference to the act passed to take effect March 20, 1909 (Consol. Laws, chap. 61; Laws of 1909, chap. 99). As this act was not in effect until more than a year after the accident happened to plaintiff, a violation of the provisions therein contained could hardly be said to be evidence of defendants’ negligence. If, however, we turn to the act which was then in force (Laws of 1901, chap. 334, § 17, as amd. by Laws of 1903, chap. 179) we find that it contained similar provisions, as follows: “ § 17.' Stairways, continued.—Each flight of stairs mentioned in the last three sections shall have an entrance on the entrance floor from the street or street court, or from an inner court which connects directly with the street. All stairs shall be constructed with a rise of not more than eight inches and with treads not less than ten inches wide and not less than three feet long in the clear.” If the provisions respecting stairs are limited to the flight of stairs referred to in the section, to wit, those mentioned in the *462last three sections, the provision in question does not apply to the house where the accident happened, for the stairs in question were not those extending from the entrance floor to the roof, nor was there any evidence that" this was a non-fireproof tenement house containing over a prescribed number of ápartments or suites of rooms above the entrance story, or a fireproof tenement house containing over a prescribed number of apartments or suites of rooms above the entrance story. (Tenement House Act, supra, %% 14,15,16, as amd. by Laws of 1902, chap. 352, and Laws of 1903, chap. 179.) If, however, it be contended that the reference to stairs in section 17 is not limited to those flights of stairs mentioned in sections 14,15 and 16, but to every stair in a tenement house, the defect which in the prevailing opinion is relied upon as establishing defendants’ negligence is not a defect alleged in the complaint. Such defects are expressed to be excessively steep stairs, the absence of a handrail, the placing of the door saddle at the top of the stairs too close to the top thereof, and the failure to light by artificial means. The evidence of the plaintiff as to the place where she fell is vague and somewhat contradictory. But it may be that as to this there was. sufficient to require the submission of the ■caseto the jury had the other essential elements necessary to make out a cause of action been established.
Jenks, P. J., concurred.
Plaintiff’s exceptions sustained and new trial granted, costs to abide the event.