Curran v. Weiss , 6 Misc. 138 ( 1893 )

BISCHOFF, J.

The facts of the overflow and leakage of water from defendants’ premises to those of plaintiff’s assignor, and damage to the latter’s stock of merchandise, abundantly appear from the evidence, and were conceded on the trial. Likewise, it appeared on the trial that the overflow was the direct result of the want of repair of an automatically closing faucet attached to the basin, and by means of which it was supplied with water, and the omission to remove the stopple from the gap of the basin. These last-mentioned facts unequivocally established negligence on the part of the defendants, or their servants. Killion v. Power, 51 Pa. St. 429; Moore v. Goedel, 34 N. Y. 527, 532.

Defendant’s assumption that it was the duty of McKeown, plaintiff’s assignor, to check the supply of water to their premises overnight by means of a cut-off located upon the premises of the latter was wholly unwarranted. McKeown’s lease did not impose such a duty upon him, neither had he led defendants to believe that he would observe it. Samuel Weiss, one of the defendants, refuted any such inference by his admission that McKeown told him long before the overflow that he would do as he pleased about turning the water on or off. McKeown cannot, therefore, be said to have been guilty of contributory negligence because he failed to check the water supply. He had a right to rely upon defendants’ observance of ordinary care, and was not bound to guard against its omission. Anselment v. Daniell, 4 Misc. Rep. 144, 23 N. Y. Supp. 875.

The legal ownership of the demand in suit having been transferred to plaintiff, he was entitled to recover, notwithstanding the fact that the assignor expected to share in the recovery. Sheridan v. Mayor, etc., 68 N. Y. 30. Judgment affirmed, with costs.