
    Max Spritzer, Appellant, v. Elizabeth Ahearn, Respondent.
    Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 18th day of April, 1914, dismissing the complaint.
   Scott, J.:

The action was by the tenant of a part of a building against his landlord for damages caused by defective plumbing. The plaintiff proved the flooding of his loft, and the resulting damage to his goods. He attempted to prove previous notice to the agent of the landlord of the defective condition of the pipes, but was not allowed to prove either the agency or the notice. Just why he was not allowed is not made very clear, except that the court, on what was doubtless a hasty reading of the answer, assumed that the fact of defendant’s ownership of the property had been denied, and that.it was incumbent upon plaintiff to prove such ownership. The fact is that her ownership was admitted, having been alleged and not denied. That fundamental error as to the contents of the pleadings affected the whole trial and led the court into the error complained of. Plaintiff’s counsel was apparently so taken by surprise that he failed to ask to be allowed to go to the jury. This is unimportant, however, since the exceptions are ample to warrant a reversal. It is true that plaintiff did not make it clear that the pipe which leaked was under the landlord’s control, but it is possible that he might have been able to do so, if an opportunity had been afforded him. We feel that, under the circumstances of the trial as disclosed in the ease on appeal, justice requires that there be a new trial. The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  