Heermance v. Bridgman — 53 N.Y. St. Rep. 523

Majority

p. 523

William L. Heermance, Resp’t, v. Edward C. Bridgman, App’lt.

(New York Superior Court, General Term,

Filed July 3, 1893.)

Headnote

.Negligence—Ovebelow fboji ttppeb apabtment—Evidence,

In an action for damages to plaintiff’s goods resulting from the overflow of water in defendant's apartment, which was on an upper floor, defendant was permitted to testify that he directed his employe to notify defendant’s emploj'e to turn off the stop-cock, and that the message was delivered: but the court refused to admit evidence of the conversation between the two employes in the absence of the parties to the action. Meld, no error ; that the mere conversation of these two employes was not material.

p. 524

Appeal from judgment entered on verdict of a jury, and from an order denying defendant’s motion for a new trial.

Lester W. Clark, for app’lt; Hunt & Rudd (James M. Hunt, of counsel), for resp’t.

The plaintiff and defendant were occupants building street, city York. The plaintiff occupied the lower or store floor, which he had fitted up for refrigeration by insulating the floors and running pipes in connection with machinery that cooled them offj and he had goods stored there. The defendant occupied the upper floor in the same building. In the month of November, 1890, the goods stored in the plaintiff's apartments were damaged by water coming from defendant’s apartments; and it is to recover damages for the injuries caused by such overflow of water that the plaintiff brought this suit. The questions of fact as to whether this injury was caused through the negligence of defendant, whether defendant omitted to exercise reasonable care to prevent such overflow, and as to whether there was any fault on the part of plaintiff, were properly submitted to the jury by the learned trial court. The jury, by their verdict, found that the overflow occurred through the negligence of defendant, without fault on the part of plaintiff; and they assessed the damages at $350. With this conclusion of the jury the general term will not interfere, as there is sufficient evidence to sustain the verdict.

There are no errors in the admission or exclusion of evidence of sufficient weight to warrant a reversal of the judgment. The court offered to allow defendant to prove that defendant had directed the witness Grady, an employe of defendant, to notify Lind, an employe of the plaintiff, to turn off the stop-coclc, and that Grady delivered the message; but the court was right in refusing to admit mere conversation on the subject between Grady and Lind, in the absence of both plaintiff and defendant. The witness Grady was allowed to testify that he was directed by defendant to tell Lind to shut off the stop-cock, and that he delivered the message to Lind. Any presumption of contributory negligence ou the part of plaintiff, arising from this testimony, was properly submitted to the jury. There was no error in the ruling of the court in this regard. It was only necessary for defendant to show that he had discharged his duty. Subsequently, the court refused to allow Grady to testify whether or not Lind had promised to turn the water off, but, as he had already testified that Lind had promised to do so, the defendant cannot be said to have been prejudiced by the ruling. The testimony is as follows: “Q. What did he (Lind) reply, if anything, when the notice was delivered to him? A. He replied that he would do it, and he also replied that he could not help doing it, because—” Here the witness was stopped by the court.

There are no other exceptions of sufficient importance to require discussion.

Judgment and order appealed from are affirmed, with costs.

Freedmah, J., concurs.