
    Frank Roberts, Respondent, v. Annie Kornblum, Appellant.
    Second Department,
    March 12, 1909.
    Landlord and tenant—negligence — injury to goods by water.
    Action by a tenant against a landlord "to recover on the ground of alleged negli gence which caused injury to goods by water. Evidence examined, and held, insufficient to justify a recovery.
    Jenks and Miller, JJ., dissented.
    Appeal by the defendant, Annie Kornblum, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor "of the plaintiff, rendered on the 21st day of October, 1908, after trial without a jury.
    
      Louis E. Schapiro, for the appellant.
    
      Edmund Fletcher Driggs, for the respondent.
   Rich, J.:

This is an appeal from a judgment, in an action brought to recover damages alleged to have been sustained through the negligence of the defendant. "The plaintiff was a tenant of defendant, occupying the ground floor of a building owned by her as "a store; she occupied the floor over him as a residence. The plaintiff testified that some time in August he heard a pottnding in the. defendant’s apartments, and small' portions of the plaster ceiling fell in his storethat he went upstairs and called the defendant’s attention to it and asked what was the matter with the ceiling, and she told him it was none of his business; that the day after the pounding was resumed, the ceiling broke, and dirty water ran through it onto his stock of goods and fixtures, damaging them to the extent of $522. His wife, whom he called, testified to an entirely different transaction. She says that when the knocking was heard her husband said to the workmen, “ Come right in.” That a workman came in, got up on a stepladder to fix the ceiling, and broke a pipe from .which • the water that flooded the store came. They both testify that after the flooding the plaintiff went upstairs and had the defendant come downstairs and look at the condition of things. The defendant denies ¡any knowledge of such a transaction. I am unable to find sufficient evidence of negligence on the part of the defendant to support the judgment. It is against the weight of the evidence, and must be reversed.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Woodward and Gaynor, JJ., concurred; Jenks and Miller, Jj., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  