¶1I concur with Mr. Justice Clarke in-the reversal of this judgment, The case was tried throughout upon the assuiinption that the *267action was to recover for a nuisaiice and was not based upon negligence. The court instructed the jury that “ since this is an action for nuisance, it is not necessary for the plaintiff to show, in the. first instance, the lack of contributory negligence "on the part of the deceased. The deceased had a right to presume the street was safe. Of course, if his death was due to intoxication, and not to the alleged improper use of the premises, you will find for the defendants.”
¶2The question of plaintiff's contributory negligence, therefore, was not considered important by the court, because it was assumed that the action was based upon the.maintenance of a nuisance. To justify a verdict against either defendant, therefore, it was necessary to prove that this stairway, covered as it was with an iron covering, was an unauthorized use of the public street.
¶3The length of time the cellar stairway, covered as it was, had been in use justified the presumption that it was under a license by the municipal authorities. It was within the area line, and was, therefore, not a violation, of section 341 of the revised ordinances, which seems to be the only ordinance to which reference was made in the testimony.
¶4There is, therefore, no evidence to justify a finding that any nuisance was maintained upon the premises. If this cellar stairway was negligently left unguarded, a cause of action would undoubtedly arise in favor of one injured; but that would only be against the person responsible for such negligence. Upon the theory under which the case was tried this question of negligence .was not presented ; but upon no theory could the landlord be liable for a negligent use of this cellar stairway by the tenant.
¶5In no aspect of the case, therefore, can it be said that there was any cause of action proved against the landlord or the tenant, and I think that the judgment against both defendants should be reversed and a new trial ordered, with costs to the appellant to abide the event.
¶6Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.