
    Abraham H. Clarke et al., App’lts, v. John R. Anderson et al., Resp’ts.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed April 2, 1888.)
    
    1. Negligence—Admissions—Statements of servants—When not competent AGAINST MASTER AS RES GESTiE.
    Statements made'by an employe of the defendants concerning the matter upon which the action is based, at a time when he is not engaged in any business with which his statements are connected, are not admissible as a part of the res gestee.
    
    8. Jury—When question will not be submitted to.
    Where there is no evidence of negligence on the part of the defendant, that question will be taken from the consideration of the jury.
    Appeal by plaintiff from judgment and order of the general term of the city court, affirming judgment of the trial term, entered upon a dismissal of the complaint, and affirming order denying motion for a new trial.
    The action was brought to recover damages to goods caused by an overflow of croton water from the premises occupied by defendants into the premises below them, occupied by plaintiffs, in the building Mo. 68 Bead street, in this city, of which premises respectively the parties were tenants. The damage occurred between Saturday night, May 19 and Monday morning, May 21, 1883.
    
      W. J. Mann, for app’lts; J. H. Parsons, for resp’ts.
   Daly, J.

It is claimed by the plaintiffs that the evidence shows that the overflow of water and damage was caused by the failure of defendants to turn the water off from their tank by using the stop-cock on their premises, and also by neghgently suffering the drip basin, beneath the tell-tale pipe that led from the tank, to become clogged up so that the overflow from the tank could not be carried off.

There was no evidence that the stop-cock had been ever used to cut off the water from the tank, or that defendants knew that it was to be used to cut off the water at night and prevent its using and overflowing, or that they knew that the water would by its own pressure rise, fill the tank and overflow. The plaintiffs’ experts, plumbers, say that the pressure of the water was greater on Sundays than on week days, and greater at night than in the daytime, but there was no evidence the defendants knew this fact, or that the water had ever risen so high as to fill the tank to overflow, before this, particular damage occurred; nor is there anything in the case to prove that defendants had reason to know or to apprehend any such rising of the water.

If they did not know it, and had no reason to expect it, where was the negligence in failing to turn the water off, or to keep the drip-basin open ? They knew that the drip-basin was used to carry off the water that overflowed through the tell-tale pipe from the tank, but the object of the telltale was to notify the person pumping water into the tank that it was full, and the basin, even if somewhat clogged, would suffice to carry off the overflow from pumping. There was nothing to warn them that there would be an overflow from the tank except by pumping water into it. They filled the tank by a hand-pump on their premises, and the fact that the pump had to be used to fill it, was some notice that the tank could not be filled in any other way.

There was no evidence of negligence to go to a jury. The plaintiffs attempted to introduce evidence of declarations made by a clerk of defendants, one Hines, that he usually turned off the water, but must have forgotten it on that Saturday night. These admissions, it is alleged, were made the morning after the damage, to an employee of plaintiffs, and in reply to a question by the latter. It needs no argument to show that they were inadmissible, being mere hearsay. It is suggested that they were “part of the res gertce,;” but Hines was not, at the time of making the admissions, engaged in any business of his employers with which such admissions were connected, and the declarations related wholly to past events.

The judgment and order should be affirmed, with costs.

Van Hoesen, J., concurs.  