Law [Consol. Laws 1909, c. 13] § 26) and died; Marie inherited from him, and plaintiff inherits that one-half from Marie. Was Henry Second "provided for" or "in any way mentioned" in Katie's will? He was not individualized, and, if that be necessary, he was neither mentioned nor provided for. But upon his birth he came under the word "issue," and was vested with an undivided half of his mother's estate, subject to being divested thereof by his death before his father, so that provision was made for him in the class that would take it. Hence, the case is similar to that of Minot v. Minot, 17 App. Div. 521, 45 N. Y. Supp. 554. See, also, Wormser v. Croce, 120 App. Div. 287-290, 104 N. Y. Supp. 1090; Stachelberg v. Stachelberg, 124 App. Div. 232, 108 N. Y. Supp. 645, affirmed 192 N. Y. 576, 85 Ν. Ε. 1116; Tavshanjian v. Abbott, 200 N. Y. 374, 93 Ν. Ε. 978. Therefore, as he was mentioned and provided for in his mother's will, and took a vested estate, which he lost by not surviving her, his sister Marie inherited nothing from him; hence the plaintiff can inherit nothing from her.

As to parcel No. 1, the result is the same, for that land belonged to Mrs. McLean, and passed under her will to her husband for life, with remainder to Marie and Henry Second, and, Henry Second dying, Marie took the whole under the will, and, as the plaintiff is not of the blood, he takes nothing.

The judgment should be reversed, and the defendants have judgment on the demurrer, with costs. All concur.

4. VENDOR AND PURCHASER (§ 130*)-ACTION FOR MONEY PAID-DEFECT IN TITLE.

A vendor, who undertakes to convey premises by good and marketable title, is liable to the purchaser for money paid upon the contract, where the title is subject to claims by the heirs of one whose executor, in excess of his powers, had conveyed the property.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245, 246; Dec. Dig. § 130.*]

Appeal from Special Term, Kings County.

Action by Michele Turco against Giuseppa Trimboli and another. From a judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 30th day of September, 1911, in favor of the plaintiff, in an action to recover money paid by him to defendants under a contract for the sale and purchase of real property, which the defendants claimed to own, and which they undertook to convey by a good title in fee simple, defendants appeal. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, WOODWARD, and RICH, JJ.

Forrest S. Chilton, of New York City, for appellants.
Edward J. Flanagan, of Brooklyn, for respondent.

RICH, J. The premises involved, with considerable other real property, was owned, at the time of the death of Aaron Clark, by him and Harriet C. Anderson in common. Clark devised his undivided interest in said property to his executors in trust, for division among his devisees and legatees; his will providing:

"And as to my real estate in his discretion to sell and dispose of the same, either at public or private sale for cash or on credit, or part cash and part credit as he shall deem most for the advantage of my estate."

The proceeds were to be divided between persons named in said will. The executor conveyed the interest of his testator in the land involved in this action to Harriet A. Anderson, the joint owner; the consideration of such conveyance being a deed to him of her interest in other realty owned in common by her and Clark at the time of his death. The title of the defendants rests upon this deed. The precise question presented is whether the executor of Clark possessed the power which he assumed to exercise, and whether his deed to Mrs. Anderson vested a good title in her in fee simple to the land therein described. The learned Special Term held that it did not, and in such conclusion I think it was right.

[1] Under the provisions of the will the executor was vested with a naked power in trust, and the testator's interest in the premises passed upon his death to his heirs or devisees, subject to the execution of such power. Sections 97, 99, 105, Real Property Law; Matter of Arensberg, 120 App. Div. 463, 104 N. Y. Supp. 1033; Matter of Cooney, 112 App. Div. 659, 98 N. Y. Supp. 676; Sweeney v. Warren, 127 N. Y. 426, 28 Ν. Ε. 413, 24 Am. St. Rep. 468; Weeks v. Cornwell, 104 N. Y. 325, 338, 10 Ν. Ε. 431; Chamberlain

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

v. Taylor, 105 N. Y. 185, 11 Ν. Ε. 625; Konvalinka v. Schlegel, 104 Ν. Υ. 125, 9 N. E. 868, 58 Am. Rep. 494; Foersch v. Schmitt, 55 Misc. Rep. 608, 106 N. Y. Supp. 935.

[2] The power in trust was not well executed. Under it the executor was limited to an actual sale for cash, on credit, or part cash and part credit, and his powers did not extend to an exchange of property. Powers v. Bergen, 6 N. Y. 359; Briggs v. Davis, 20 N. Y. 15, 75 Am. Dec. 363; Roome v. Philipps, 27 N. Y. 357; Russell v. Russell, 36 N. Y. 581, 93 Am. Dec. 540; Scholle v. Scholle, 113 Ν. Υ. 261, 274, 21 Ν. E. 84; Woerz v. Rademacher, 120 N. Y. 62, 65; Moran v. James, 21 App. Div. 183, 47 N. Y. Supp. 486.

[3, 4] It is urged that the beneficiaries are estopped from asserting any claim to the premises. I do not think this contention good. There is a risk involved in taking title. The plaintiff is entitled to a marketable title, and such right must be protected and enforced. Moore v. Appleby, 108 N. Y. 241, 15 N. E. 377; Harris v. Strodl, 132 Ν. Υ. 392, 397, 30 N. E. 962. The defendants undertook to convey the premises to plaintiff by a good and marketable title, free from serious doubt, and the evidence establishes their inability to perform their contract obligation.

The judgment must be affirmed, with costs. All concur.

(152 App. Div. 457.)

PHELPS v. KAUFMAN et al.

(Supreme Court, Appellate Division, Second Department. September 10, 1912.) 1. LANDLORD AND TENANT (§ 169*)-TENEMENT HOUSE REGULATIONS.

That application for erection of a building was filed in the tenement house department of New York City, and a violation was filed against its use without a certificate, shows that the building was within Tenement House Law (Consol. Laws 1909, с. 61) § 21, which fixes the dimensions of treads on stairs.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 644-646, 663-667, 681-684; Dec. Dig. § 169.*]

2. LANDLORD AND TENANT (§ 168*)-INJURY TO TENANT-LIABILITY OF LAND

LORD.

A landlord cannot escape liability for injury to a tenant, caused by treads on cellar stairs not of the width required by Tenement House Law (Consol. Laws 1909, с. 61) § 21, because she did not carry a light with her; the accident occurring on her first use of the stairs, which she had a right to assume were constructed as required by law.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 642, 643, 661, 662, 680; Dec. Dig. § 168.*]

Jenks, P. J., and Burr, J., dissenting.

Action by Kathryne Phelps against Israel Kaufman and another. On exceptions of plaintiff. Exceptions sustained, and new trial granted.

See, also, 146 App. Div. 953, 131 N. Y. Supp. 1137. Argued before JENKS, P. J., and BURR, THOMAS, WOODWARD, and RICH, JJ.

Ralph G. Barclay, of Brooklyn (Robert Stewart, of Brooklyn, on the brief), for plaintiff.

E. Clyde Sherwood, of New York City (Joseph F. Murray, of New York City, on the brief), for defendants.

THOMAS, J. [1, 2] The plaintiff, living in a house let in part to several families, fell down cellar stairs common to the tenants, and was injured. The complaint was dismissed, upon the grounds that she negligently attempted to use the stairs in the darkness, and that the narrow step or landing at the top of the stairs did not cause her to fall. There was a door at the top of the stairs, which the plaintiff left opened, and another closed door was at the foot of the stairs, with a wall on either side, but there was no handrail. Between the upper door, when closed, and the first riser, the distance was 712 inches, and on the floor, which ended halfway over the edge of the riser, the saddle or threshold extended, so as to leave only some 3 inches of upper step or landing. No tread on the stairs was over 878 inches, and each riser, although not plumb, was 8 inches. The Tenement House Law (section 21) requires treads of not less than 10 inches, and applies to cellar stairs. Where the foot treads at the top of the stairs is a tread, and section 21 is applicable, provided the house in question is by pleading and proof shown to be a tenement house. The statute (section 2) provides:

"A 'tenement house' is any house or building, or portion thereof, which is rented, leased, let or hired out, to be occupied, or is occupied as the home or residence of three families or more living independently of each other, and doing their cooking upon the premises, or by more than two families upon any floor, so living and cooking, but having a common right in the halls, stairways, yards, water-closets or privies, or some of them."

The complaint does not amply describe the house as a tenement house, but the evidence shows that the application for the creation of the house was first filed in the tenement house department on April 25, 1904, and the building was completed thereafter, and that in the department a violation was filed against its use without certificate. Therefore the house was under the statute, and the construction of the stairway was, as regards the treads, in violation of section 21. Even at common law the question of negligence in such construction of the stairs in a place so obscured would be for the jury.

But the darkness of the place, it is urged, precluded the plaintiff's use of the stairs until she had secured her own safety by illuminating the way and discovering the conditions. That argument means that as a matter of law a tenant, entitled to stairs constructed lawfully for her reasonably safe use, cannot recover if, in the course of her first descent, she fall on the stairs because they are unlawfully and dangerously constructed, provided she attempts, without knowledge of the defects, to use them in such a degree of darkness that she cannot by sight discover the perilous and wrongful construction. It is reasonable decision that a person unconstrained to do so shall not intrust himself in dark, untried, and unknown places in a building, where he cannot, through the darkness, discover where he is taking himself. Brugher v. Buchtenkirch, 167 N. Y. 153, 60 N. E. 420; Robinson v. Crimmins, 120 App. Div. 250, 104 N. Y. Supp. 1076; Lather v. Bammann, 122 App. Div. 13, 106 N. Y. Supp. 790; Hilsenbeck v. Guhring, 131 N. Y. 674, 30 Ν. Ε. 580; Dailey v. Distler, 115 App. Div. 103, 100 N. Y. Supp. 679; Rohrbacher v. Gillig, 203 N. Y. 413, 96 N. E. 733. And even when the law requires cellar stairs to be lighted, if one apprised that the light essential to safe descent has not been provided, and the darkness is the proximate cause of his falling, it has been decided that he may not complain unless he went under some necessity. Lather v. Bammann, supra. In such case the light is absent by the landlord's fault, but the omission of duty declares itself, as does the danger of descending.

But such is not the present case. The door led to the staircase. The stairs were placed and let by the landlords to be used with such imperfect light as was furnished, and the tenant had the right to expect proper stairs and assume the presence of what the statute ordered. Therein the case differs from Weller v. Consolidated Gas Co., 198 N. Y. 98, 91 N. E. 286; and Dailey v. Distler, supra. Using them for the first time, she fell, not necessarily because of absent light, but because the stairs were so constructed that there was but some 3 inches of imperfect tread beyond the threshold, while the short treads beneath facilitated, or at least did not impede, the fall. It is true that absent handrails and the darkness increased the probability of falling and the inability to arrest the descent, and that the plaintiff, had she procured a light, might have discovered how perilous the way the landlords had made for her, and adopted means to meet the results of their negligence.

But that is aside from the essential question, which is whether she was bound to light the stairs and learn, before using them, whether the landlords had done as the statute told them to do. The law imposed a duty on the landlords to provide prescribed treads for the use of the tenant, and they would escape the burden of compliance and compensating for the injury therefrom by the plea that the tenant should discover the construction of the stairs as a condition precedent to using them, and thereby mitigate the chances of the disobedient person suffering for his disobedience. The plaintiff was not commanded by the law to suspect the disobedience of a statute, and is not condemned for failure to take means to detect such infraction. Totten v. Phipps, 52 N. Y. 354; Kenney v. Rhinelander, 28 App. Div. 246, 50 N. Y. Supp. 1088, affirmed 163 N. Y. 576, 57 N. E. 1114; Brown v. Wittner, 43 App. Div. 135, 59 N. Y. Supp. 385; Lee v. Ingraham, 106 App. Div. 167, 94 N. Y. Supp. 284; Lendle v. Robinson, 53 App. Div. 140, 65 N. Y. Supp. 894; Schindler v. Welz & Zerweck, 145 App. Div. 532, 130 N. Y. Supp. 344.

In the last case, where the absence of light was the proximate cause, it was decided that the plaintiff must show that she used care. But here the plaintiff fell where she could not see; for the stairs, although not totally hidden, were very dark. The jury would