Olin P. Ely Co. v. Rhoads — 61 N.Y.S. 817

Majority

p. 817

OLIN P. ELY CO. Y. RHOADS.

(Supreme Court, Appellate Term.

December 28, 1899.)

Headnote

Negligence—Evidence.

Plaintiff and defendant were tenants of a common landlord, the formes occupying the ground floor, and the latter the apartment immediately above. An overflow from a bathtub in defendant’s apartment, the outlet of which was stopped, or made smaller, by a piece of cloth accidentally or purposely placed therein, the removal of which permitted the water in said tub to easily run off, shows sufficient negligence on defendant’s partió support a judgment against him for damages resulting to plaintiff therefrom.

Appeal from municipal court, borough of Manhattan, Eleventh district.

Action by the Olin P. Ely Company against Benjamin T. Rhoads, Jr.,, sued as Benjamin T. Rhoads. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Burr & De Lacy, for appellant.

Louis Frankel, for respondent.

The parties were tenants of a common landlord;the plaintiff occupying the ground floor for a merchant tailoring shop, the defendant living in and controlling the apartment immediately above. During the afternoon of Sunday there was discovered, dripping through the ceiling, water, which was from the overflow of a bathtub in the defendant’s apartment, the outlet' of which was stopped, or made smaller, by a piece of cloth accidentally or purposely placed therein, and which surplus water ran off easily upon removal of the cloth. The negligence on the part of the defendant’s household was apparent, and scarcely gainsaid. That damage was done by the leak greater than the sum demanded in the complaint, and for which judgment was awarded, was proven, and practically admitted. No exception taken upon the trial brings up reversible error. The judgment should be affirmed.

Judgment affirmed, with costs, All concur.