Valois v. Tompkins — 2 N.Y. City Ct. Rep. 407

Majority

p. 407

City Court.

Special Term

May, 1887.

VALOIS against TOMPKINS.

Headnote

Action against Owner of Dwelling for Overflow of Water— Pleadings. Where an owner not in occupation is sued for an overflow of water by a tenant in possession, the complaint ought to allege facts, showing specifically the breach of duty making the owner liable.

Motion to make complaint more definite and certain.

The gravamen of the complaint is that “ through the negligence,, omission and breach of duty of the defendant, her agents and servants;, .... the fixtures and stock in trade of plaintiff were damaged by water leaking through from the floor above the one occupied by the plaintiff, to his damage, etc.” The defendant is the owner of the property, and not the occupant of the

p. 408

floor from which the water came. The complaint should be made more specific in regard to -the breach of duty by the defendant, its nature and the like, so that the facts charged may show the breach, instead of asking it to be inferred from the mere conclusions of the pleader.

Motion to make complaint more definite in the respects aforesaid granted, without costs.