Dowling, J.:
Plaintiff has recovered for the second time a verdict against the defendant J. J. Steindler Company. The judgment entered on the first verdict was reversed by this court upon a prior appeal because of the erroneous admission of testimony. (170 App. Div. 811.) The facts are fully discussed in that opinion and it is unnecessary to restate them, as the record before us is not materially different from the former one. As the result of the determination of this court just cited, the submission to the jury of the question as to whether the building wherein the accident occurred was a factory within the meaning of the Labor Law was proper, nor should their finding thereupon be disturbed. Necessarily involved in that finding is the question of defendant’s duty of compliance with the provisions of the Labor Law and particularly with section 80 thereof, requiring that proper and substantial handrails shall be provided on all stairways in factories. (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 80.)* Upon that theory of the case, there still remained for determination the questions (1) whether the defendant's violation of its statutory duty was the proximate cause of the injuries sustained by plaintiff, and (2) whether plaintiff was free from negligence contributing to her injuries. But upon the present trial the case was submitted to the jury by the learned trial court, not only upon the theory of defendant’s liability because of its violation of a statutory duty to provide handrails upon the stairway in question, but also upon the [95] theory of defendant’s liability because of its failure to perform its common-law duty to provide and maintain a reasonably safe stairway, inasmuch as it had retained, as owner of the building, the maintenance, care and control of the hallways, stairs and stairways of the building (including the stairway in question) which were used in common by all the tenants on the premises and their employees, plaintiff being the employee of one of the defendant’s tenants. Defendant by exceptions and by its requests to charge, duly raised the question as to the erroneous submission to the jury of the alleged liability of defendant at common law. We are of the opinion that there was not sufficient evidence of any negligence of defendant at common law to warrant submitting that issue to the jury for determination. There was sufficent evidence to warrant submitting to the jury the issue as to defendant’s liability under the Labor Law. The jury found a general verdict for plaintiff, and there is no way of determining upon which of these theories they predicated liability. Under these conditions, as the jury may have found for plaintiff upon the erroneously submitted theory of defendant’s alleged liability at common law, for which no basis existed, the judgment appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Laughlin and Shearn, JJ., concurred; Scott, J., dissented.
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