Curran v. Weiss — 56 N.Y. St. Rep. 284

Majority

p. 284

Patrick H. Curran, Resp’t, v. Nathan Weiss et al., Appl’ts.

(New York Common Pleas, General Term,

Filed December 4, 1893.)

Headnote

1. Negligence—Adjoining occupants.

The lower occupant of a building has a right to rely upon his neighbor's observance of ordinary care and is not bound to guard against its omission.

2. Pabty—Assignment.

An assignee, who has the legal ownership of a demand, is entitled to recover upon it, notwithstanding the fact that the assignor expects to share in the recovery.

Appeal from a judgment for plaintiff recovered in the district court in the city of Hew York, for the first judicial district. Action to recover damages for the negligence of defendants, or their servants, which resulted in the overflow of a water-basin and injury to a stock of merchandise belonging to plaintiff’s assignor, the latter being at the time the tenant and occupant of the lower, and defendants the tenants and occupants of the upper portion of the same building.

Campbell & Murphy, for resp’t; Louis J. Vorhaus, for app’lt.

The facts of the overflow and leakage of water from defendants premises to those of plaintiff’s assignor, and damage to the latter’s stock of merchandise, abundantly appear from the evidence and were conceded on the trial. Likewise it appeared on the trial that the overflow was the direct result of the want of repair of. an automatically closing faucet attached to the basin, and by means of which it was supplied with water, and the omission to remove the stopple from the gap of the basin. These last mentioned facts unequivocally established negligence on the part of the defendants or their servants. Killion v. Power, 51 Pa. St. Rep., 429; Moore v. Goedel, 34 N. Y., 527 , 532.

Defendants’ assumption that the duty of McKeown, plaintiff’s assignor, to check the supply of water to their premises over night by means of a “cut off” located upon the premises of the latter was wholly unwarranted. McKeown’s lease did not impose such a duty upon him. Heither had he led defendants to believe that he would observe it. Samuel Weiss, one of the defendants, refuted any such inference by his admission that McKeown told him long before the overflow that he would do as he pleased about turning the water on or off. McKeown cannot, therefore, be said to have been guilty of contributory negligence because he failed to check the water supply. He had a right to rely upon defendants’ observance of ordinary care, and was not bound to guard against its omission. Anselment v. Daniell, 4 Mis., 143 ; 53 St. Rep., 133 .

The legal ownership of the demand in suit having been transferred to plaintiff, he was entitled to recover, notwithstanding the

p. 285

fact that the assignor expected to share in the recovery. Sheridan Mayor, etc., 68 N. Y., 30 .

Judgment affirmed, with costs.