Brown v. Smith ( 1908 )

PER CURIAM.

The oral pleadings do not disclose any cause of action, unless the word “damages” be so deemed. The answer is a general denial, demand bill of particulars, and counterclaim $200. The bill of particulars states “list of goods belonging to plaintiff and destroyed or damaged by fire at 53 Jay street.” The written (unverified) counterclaim is for balance, $151.67, and interest, rent of premises 10 Jay street, as to which no evidence was offered. We are not referred to any testimony showing the relation between the parties, except that of plaintiff, who says he rented the first floor and cellar of 53 Jay street from the defendant; but there is silence as to the terms or conditions of the hiring. On February 26, 1908, a fire occurred on the premises, whereby property of the plaintiff was destroyed or damaged. On that .day water pipes in the cellar became frozen. Both plaintiff and defendant participated in an endeavor, by means of burning newspapers, to thaw them. Hence the conflagration. Believing the fire to have abated, the parties left, though the-next morning their mistake was discovered by finding the damages complained of. Plaintiff had judgment for <¡>329.31 on doubtful testimony as to value. Disregarding the unsatisfactory condition of the record, and giving to the plaintiff every reasonable inference to be raised from the circumstances, the judgment was erroneous, and should be reversed. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.