Cadby v. Hill

The plaintiffs, tenants of portions of a three-story building in the city of Utica, owned by defendants and devoted to business purposes, recovered a judgment for damages alleged to have been sustained by them by reason of the bursting of water pipes due to frost and failure on part of defendants to supply adequate heat in the building, which resulted in the flooding of a stock of goods, furniture, fixtures, etc., the property of plaintiffs.

Upon appeal by defendants the Appellate Division reversed the judgment and dismissed the complaint. That court, however, did not hand down an opinion indicating the views entertained by it upon the questions presented in the case or that led to the determination made by it, but simply embodied in its order the following: “ Held, that even assuming the defendants were guilty

The conclusion reached by us necessitates a narration of the principal facts and the questions arising therefrom. Upon the street floor of the building of defendants are two stores numbered respectively 234 and 236 Genesee street. February 1, 1915, by written lease, the plaintiffs rented of defendants store No. 234 and a portion of the basement cellar for a period of five years two months. The defendants covenanted to provide heat for the premises when necessary. The plaintiffs were to pay water rates for such water as they consumed. Later the plaintiffs took a lease of the store No. 236 and on or about June 1, 1916, plaintiffs rented two rooms in the rear of the building on the third floor which they utilized in connection with their art store for developing and printing films, pictures, etc. The entire building was heated by steam from a boiler located under store No. 234. At the time of the lease of the two rooms the evidence presented by plaintiffs was to the effect that they notified defendants that the use to be made by them of the rooms on the third floor required that they should at all times be heated to at least a temperature of sixty degrees to keep the developer warm, and that defendants assured them that the rooms would be properly heated at all times. Defendants denied such agreement.

Plaintiffs also desired water installed in the second room and offered evidence that defendants consented that the same should be done and recommended a plumber to do the work and the same was installed by the plumber recommended and was installed by connecting the pipe from the cellar main, and the connection was with the pipe that furnishes water to the boiler in the cellar and also to the closets in the building, so that if the water was shut off in one pipe it shut the water off from the boiler and from the closets.

On the morning of February 5, 1918, an employee of plaintiffs whose employment was devoted to the rooms on the third floor discovered that the water in the pipes in one of the rooms was frozen; he tried the faucet and found it frozen and no water would come from the same. He then went into the second room and discovered that the water in the tank was frozen about one inch in thickness on top and he could not obtain water in either room on account of the freeze up. He also discovered that the steam pipes in one of the rooms were cracked open, that both rooms were very cold and the floor of one room was covered with ice and water. He then called defendants and notified them that the steam and water systems were frozen, and they immediately sent some plumbers to take care of the same.

Defendants admitted the conversation and that they were aware of the fact that water in a pipe would be frozen before the steam or condensation in a steam pipe would freeze, but denied that they were notified about the water pipe. The plumbers having arrived they took down the steam pipes and continued work during the day but did not complete their work or thaw out the water pipes, and having made certain disconnection of pipes leading to the tanks, left them in that condition when they stopped work for the day. During the night or early in the morning following, the faucet on the water pipe cracked from the frost and the temperature having moderated the water flowed in large quantities through the building into the store occupied by plaintiffs causing the damage complained of.

At about the time of the occurrence the weather in Utica had been very cold. The tenants of the building and employees therein other than the plaintiffs deposed

Counsel for respondents in his brief writes: “ The real question at issue is the question of negligence on the part of plaintiffs,” and then proceeds to base an argument ■ upon the proposition that the water pipes were installed by plaintiffs and were under their control; that a stopcock was placed in the system by plaintiffs; that plaintiffs were aware that the water pipes were frozen and that with no heat in the room they were hable to burst and they should have turned off the water. Had plaintiffs turned off the water the accident would not have happened. Further that when plaintiffs rented the rooms some panes of glass were out of a window sash in the room and a flue in the chimney was open.

The evidence on the part of plaintiffs was that the water pipe installation was made by a plumber recommended by defendants; that they knew nothing of the details of the work or of the existence of a stopcock in the cellar in which was located the heating plant, coal for the building, etc., and entered by a separate entrance by the janitor who had charge of the same; that prior

As to the broken window glass, the evidence of plaintiffs was to the effect that the entire window was covered with, two layers of compo board, five-eighths of an inch thick, all joints covered. As to the flues in the chimney, the evidence of defendants’ witness disclosed it to be a five-inch flue and served to ventilate the room, change the air and was not a detriment.

The several issues we have discussed presented questions of fact proper for consideration by the jury and were presented by the trial justice to the jury in an eminently fair charge. We do not deem it necessary to review the cases cited by counsel for respondents, all of which have in connection with other cases received consideration.

His cock, Ch. J., Chase, Cardozo, McLaughlin, Crane and Andrews, JJ., concur.

Judgment accordingly.