
    The Sherwood Company, Appellant, v. Otto Volkening, Respondent.
    
      Landlord and tenant — damage to property of tenant from water flowing from faucet left turned on in unoccupied premises overhead — when landlord not liable.
    
    
      Sherwood Co. v. Volkening, 196 App. Div. 962, affirmed.
    (Argued October 26, 1922;
    decided November 21, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 30,1921, unanimously affirming a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint. The action was tenant against landlord, to recover for damage to plaintiff’s goods arising from water flowing from a faucet left turned on in unoccupied premises above those leased by plaintiff, it being contended that said unoccupied premises were in sole charge of defendant and that, therefore, he was responsible for the damage. There was no proof as to who left the faucet turned on. The lease contained the following provision: “ Twelfth. It is expressly agreed and understood by and between the parties to this agreement, that the landlord shall not be liable for any damage or injury by water, which may be sustained by the said tenant or other person, or for any other damage or injury resulting from the carelessness, negligence or improper conduct on the part of any other tenant or agents, or employees, or by reason of the breakage, leakage, or obstruction of the Croton Water or soil pipes, or other leakage in or about the said buildings.” ~’
    
      Samuel I. Frankenstein for appellant.
    
      Carlisle Norwood for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Not voting: Hiscock, Ch. J.  