Levy v. Korn , 61 N.Y.S. 1109 ( 1899 )

O’Dwyer, J.

This action was brought by the plaintiffs against the defendant, as owners of the property 3STo. 258 Grand street, Yew York city, for their negligence by reason of which water which was supplied to the floors of said premises above the one occupied by the plaintiffs, was negligently, and without any fault on the part -of the plaintiffs, allowed to leak, overran, drip and flow into the premises occupied by the plaintiffs, causing the stock of merchandise carried by the plaintiffs to be damaged.

An action lies by a tenant of a part of a building against his landlord, who occupies other parts, or who has the control of other parts, to recover damages for negligence in allowing injurious substances to leak through, and the principle that, as between landlord and tenant, the landlord is not bound to keep in repair without express contract, does not avail as a defense if negligence be shown. Stakenhorse v. American Company, 15 Abb. Pr. [N. S.] 355. This action is the same as if one tenant were suing another, who occupied the premises above the one occupied by the plaintiffs, and, therefore, ■ the proof of the overflow, was sufficient evidence of negligence. Simon-Reigel Company v. Gordon-Burnham Company, 20 Misc. Rep. 598; Greco v. Bernheimer, 17 id. 592; Moore v. Goedel, 34 N. Y. 527. There is no evidence in the defendant’s case to explain the cause of this overflow or leakage; but it appears affirmatively, in the plaintiffs’ case, that the accident was-caused by the condition of the faucet, and the fact that the sink was stuffed up with ashes and dirt and that the premises were in the control of the defendants, the tenant having removed therefrom some days previous to the accident. The court, having dismissed the complaint, the plaintiffs are entitled to the most favorable inferences from the evidence and all contested facts are to be treated as established in their favor. Pratt v. Insurance Co., 130 N. Y. 206; Higgins v. Eagleton, 155 id. 466; Rauth v. Scheer, 20 Misc. Rep. 689. The floor from which the water came was vacant at the time of the flow and under the control and supervision of the defendants. This being so, it was error to dismiss the complaint.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Fitzsimons, Ch. J., concurs.

Judgment and order reversed and new trial ordered, with costs-to appellants to abide event.