
    Selig Citron and Henry Salinsky, Composing the Firm of S. Citron & Co., Appellants, v. Anna B. Bayley and Others, Respondents.
    
      Action for. damages sustained by a tenant from an overflow of water from the premises of another tenant — when it lies — duty to cut off water — appeal from the dismissal of a complaint.
    
    A complaint, in an action brought by the lessees of the second and third lofts of ’ a building to recover damages from the. owners of the premises and the tenant who occupied the fourth loft, which alleges an overflow upon the plaintiffs’ premises of water from the fourth loft, caused by the tenant of that loft leaving open a stop cock attached to a water apparatus on said floor, and also by an overflow from the tank on that floor, which was improperly and negligently constructed, in that it did not have the customary and necessary ball cock attached, by reason of the absence of which the tank filled with water and overflowed and • added to the catastrophe, states a good cause of action against the owners of the building because of the faulty construction and maintenance of ■ the tank, and against the tenant because of his leaving the stop cock open.
    
      Semble, that the defendants, having no right to shut off the water from the other tenants of the building, were not negligent in not having cut off the water from the lower part of the building by a stop cock situated there.
    Mo appeal lies from an order of the trial court dismissing a Complaint. S.uch ruling must be reviewed by an appeal from the judgment.
    Appeal by the plaintiffs, Selig Citron and another, composing the firm ofiS. Citron & Co., from judgments of the Supreme Court in favor of the defendants, entered respectively in the office of the clerk of the county of New York on the 16th and 24th days of Hay, 1898, upon the dismissal of the complaint as to all of the defendants by direction of the court after a trial at the New York Trial Term, and also from orders entered in -said clerk’s office on the 4th day of April, and the 18th day of May, 1898, respectively, dismissing the complaint.
    
      Franklin Pierce, for the appellants..
    
      Eugene A. Philbin, for the respondents Bayley and others.
    
      Emil Goldmark, for the respondent Goldberg.
   Van Brunt, P. J.:

The appeals from the orders must be dismissed, as there is no authority under the Code for an appeal from an order of this description. The review of the ruling of the court is by appeal from the judgment.

Although the pleader, in drawing the complaint in this action, does not seem to have had any definite idea as to the ground upon which a recovery could be had, yet we think that sufficient is alleged in the complaint-to make out causes of action as against all rhe defendants. The complaint. alleges that the defendants Bayley, Beekman, Lawrence and Halsey were the owners of the premises in question; that the defendant Goldberg was the lessee and occupant of the first and fourth lofts of said premises; and that the plaintiffs were the lessees and occupants of the second and third lofts of the said premises : that on the 2d and 3d days of July, 1894, there was an overflow of water from said fourth loft which entered upon the premises occupied by the plaintiffs and injured goods belonging to them. The complaint further alleges that this overflow was caused by the negligence of the defendant Goldberg in leaving open a stop cock attached to the water apparatus on said floor and allowing the water to.run into a basin which overflowed; and that it was also caused by an overflow -from the tank situated in said fourth floor, which was improperly and negligently constructed, in that it did not have a ball cock attached, which was customary, usual and necessary, and that by reason thereof the tank filled with water and overflowed and added to the catastrophe. There is also an allegation that the defendants were negligent in not shutting off the water from the lower part of the building "by a stop cock which was there situated.

Probably the defendants had no right to shut off the water from the other tenants of the building by means of this stop cock,, and no negligence could be imputed to them because they did not make use of it. There are, however, as to the defendants, the owners of the-building, complete and perfect allegations of negligence in the construction and maintenance of the tank on the fourth floor, in that it had no ball cock which was necessary to control the flow of water therein and which it was customary to have, and that the tank overflowed for that reason. There is also a complete and perfect allegation of negligence as against the defendant Goldberg in leaving the stop cock open so that the water ran into the basin and overflowed.

The landlords clearly were responsible if they maintained upon their premises a fixture which was improper in construction and from which were absent necessary appliances for controlling the. flow of the water. While they were not responsible for the negligence of tenants in the management of appropriate fixtures, they were bound to have proper appliances for the coutrol of the water introduced, into their premises. Thé allegations of the complaint being that the tank was constructed without such necessary appliance, are, if proved, sufficient to establish a liability upon the part of the owners of the premises. As to what may be the relative rights of the parties to this .action upon the proof that may be adduced it is not now necessary to discuss. A landlord is clearly responsible for damages arising from negligent construction or defects due to his want of care existing at the time of his lease to a tenant. (Swords v. Edgar, 59 N. Y. 28.)

We think, therefore, that the judgments appealed from should be reversed and a new trial ordered, with costs to the appellants to abide-the event.

Barrett, Rumsey, Patterson and O’Brien, JJ., concurred.

Appeals from orders dismissed, judgments reversed, new trial ordered, costs to appellants to abide event.  