On March 6, 1929, the plaintiff John Tymon, Jr., four years of age, met with an accident. At that time he resided at No. 1983 Crotona avenue, Bronx, with his aunt, Jane Mosher, who was a janitress and occupied the basement apartment of those premises. Mrs. Mosher’s mother-in-law, a Mrs. Farrell, was the janitress and occupied the basement apartment in the adjoining premises, No. 1985 Crotona avenue, which was an apartment building owned by the defendant.
In front of the defendant’s premises and located approximately in the center of the building was a stoop over an areaway. This areaway was thirty-seven feet six inches in length, five feet in width and extended about five feet below the level of the street, and was guarded on the street side by a picket fence and could be entered from the street only by means of a stairway at the extreme right. There was an entrance to Mrs. Farrell’s apartment from *102the areaway, the door being about nine feet from the foot of the stairway leading from the street. On one side of Mrs. Farrell’s door the stairs to the street were located, on the other side the areaway was blind.
Some time prior to the accident the defendant placed an old radiator in the dead end of the areaway, more than twenty feet from the entrance to Mrs. Farrell’s apartment and about twenty-nine feet from the stairs. It was left in a standing position, leaning on its side against the wall of the areaway toward the street, resting on two points, the valve and the nut which were near the bottom of the radiator.
On the day of the accident the infant plaintiff received a penny from his aunt, Mrs. Mosher, and left her apartment adjoining the defendant’s premises with his cousin, Frank Mosher, who was then six years of age, to go to the store for candy. When the child reached the wooden platform at the head of the stairway leading up from his aunt’s apartment in No. 1983 Crotona avenue, he was on a level with the street and immediately adjacent to the defendant’s areaway. At this place the child dropped his penny and it fell into the defendant’s areaway under the old radiator. The child walked down the stairs leading to the defendant’s areaway and went over to the radiator and as he attempted to recover the penny, he disturbed the radiator and it fell on his foot and crushed it.
Frank Mosher testified that as the infant plaintiff descended the stairs, he remained on the top step and, therefore, could not see what the infant plaintiff did while looking for his penny, because the stoop of No. 1985 Crotona avenue blocked his line of vision. He did say that he heard the infant plaintiff scream, and that he called Mrs. Farrell who carried the child into the house.
On the above facts the case was submitted to the jury and verdicts were rendered in favor of the plaintiffs. The trial court refused defendant’s motion to set aside the verdicts.
The defendant, appellant, contends that as landlord it owed no duty to the infant plaintiff to keep the radiator out of the areaway; that the construction of the areaway five feet beyond the building line was legal; that the infant plaintiff was a trespasser who admitted having been chased out of the areaway a number of times before the day of the accident; that toward trespassers or bare licensees, an owner or occupier of land owes only the duty of abstaining from inflicting intentional, wanton or willful injuries; that the defendant was not guilty of negligence, as was shown by the testimony of its janitress, Mrs. Farrell, the mother-in-law of plaintiff’s aunt, who testified that the radiator was in a firm and sound position, *103and that it never moved as it stood against the wall even when she swept around it almost daily. It is also contended that it was improper to permit the infant plaintiff to testify under oath because of his age and the fact that psychologists agree that the testimony of a child the age of the infant plaintiff is very unreliable.
The respondents say that the defendant was negligent in placing the radiator in the areaway in front of its house in such a position that it was in imminent danger of falling. It is claimed that the areaway is just as much a part of the street as any other portion of the sidewalk, but that the defendant was permitted to use it for the purpose of getting light and air, and for access to the basement apartments, and that the privilege conferred no ownership upon the person receiving it and is revocable by the city. It is also argued by the respondents that the law imposes a duty on the defendant to maintain the areaway in a reasonably safe condition as far as any one having occasion to use it is concerned.
It is further contended by the respondents that even if the area-way is on defendant’s property and the infant plaintiff is only a bare licensee or even a trespasser, the defendant would be liable because it maintained a hidden engine of destruction, so placed that it was in imminent danger of falling and constituted a trap.
The competency of the infant plaintiff to testify was for decision by the trial court. The respondents very properly say that it was within the discretion of the court, and that by the court’s examination of the boy as to his capacity, the extent of his knowledge, his understanding of the difference between truth and falsehood, and his appreciation of his duty to tell the truth, his ability to testify was thoroughly considered. The attorney for the defendant took part in that examination. There appears, therefore, to have been no abuse of discretion by the court in permitting the infant to testify.
The appellant had an absolute right to store the radiator in the areaway or any other place upon the premises. The storing of the radiator was not negligence and the record does not show negligence as to the manner in which it was placed. The fact that the infant plaintiff saw fit to go down into the areaway to recover the penny which he had lost and in doing so attempted to move the radiator clearly precludes his right to recover in this action. In searching for his penny he disturbed the radiator, causing it to fall upon his foot, and he is responsible for his accident.
The owner of the premises was charged only with the duty to refrain from inflicting intentional, wanton or willful injury upon the infant plaintiff. In Mendelowitz v. Neisner (258 N. Y. 181, 184) the court said: “ Toward mere trespassers or bare licensees the rule
*104is well settled that the only duty owing to them by the owner or occupier of land is to abstain from inflicting intentional, wanton or willful injuries unless he maintains some hidden engine of destruction, such as spring guns or kindred devices, upon his property.”
In Vaughan v. Transit Development Co. (222 N. Y. 79, at p. 82) the Court of Appeals said: “ If plaintiff had had no permission to come on the premises he would have been a trespasser. If he had been there by invitation or on lawful business of interest to both parties he would have been an invitee. But he was there by permission, for his own convenience, and his status was that of a bare licensee. * * * Long-continued acquiescence in such use does not become an invitation. The law does not so penalize good nature or indifference, nor does permission ripen into right.”
There, is a clear distinction between a case where one is injured while using a stairway which has been constructed for such use, and a case where a child walks down a stairway and along a blind areaway and then by moving a radiator, causes it to fall upon his foot. An areaway properly inclosed and being lawfully used by the owner of property by permission of the city of New York is not a public street.
There was no negligence on the part of the defendant. Therefore, the judgment should be reversed, with costs, and the complaint dismissed, with costs.
Judgment affirmed, with costs.