Judgment reversed upon the law and a new trial granted, costs to abide the event. We are of opinion that the obvious construction of the charge of the court with reference to the necessity of notice to the landlord of the alleged defect in the porch was that no such notice was required if the jury found the building to be a tenement house or found that the porch in question was used in common by all the tenants. The charge in this respect was erroneous and calls for a reversal of the judgment. ( Altz v. Leiberson, 233 N.Y. 16; Hirsch v. Radt, 228 id. 100.) Young, Hagarty and Carswell, JJ., concur; Lazansky, P.J., and Kapper, J., dissent and vote to affirm, being of opinion that the entire question of notice was adequately presented to the jury.