
    Thomas Russell & Son, Appellant, v. Charles Craske Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1911.)
    Negligence — Actions — Evidence — Presumptions and burden of proof — Presumption of negligence from happening of accident — Leakage from sewer pipe.
    Where to prevent leakage of overflow to the floor below a lease provided that the tenant of one of the floors of a building should keep the flooring and cement work in repair or renew it and should remove and put in a better waste or sewer pipe so as to prevent leakage, and one of the joints of said pipe opened and let out water which damaged property of the tenant of the floor below, the happening of the accident is presumptive evidence of negligence on the part of the upper tenant, it appearing that said pipe was under his exclusive use and control.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Yew York, borough of Manhattan, fifth district.
    Alfred E. Ommen, for appellant.
    H. A. & C. E. Heydt (J. W. Van Gordon, of counsel), for respondent.
   Guy, J.

Plaintiff appeals from a judgment, rendered by the court without a jury, dismissing the complaint upon the merits after trial. Plaintiff and defendant were, at the time of the occurrence involved herein, cotenants in a building in Pearl street, in this city, where plaintiff was engaged in the business of bookbinding, occupying the fifth floor and part of the cellar; and defendant was engaged in electrotyping, occupying the sixth floor. Sometime prior to the time in question, defendant had entered into a written lease with the owners of the building whereby it was provided that defendant should keep the flooring and cement work properly repaired or renewed, so as to prevent leakage from overflow to' the floors below, and should remove and put in a better waste or sewer pipe so as to prevent leakage, and should be wholly liable for any damage or leakage to the other tenants or their property, and should keep said premises clean and in good condition and order and make all necessary repairs for said demised premises including repairs to plumbing. Some months after making the lease defendant put in a new pipe for discharging from defendant’s place water and acid used in electrotyping. On October 17, 1910, one of the joints of the pipe in question opened and let out water which flowed over books belonging to the plaintiff. It was stipulated upon the trial that the damage done by the overflow amounted to eighty-six dollars and fifty-eight cents. At the close of the trial the plaintiff moved for judgment and the defendant moved for a non-suit, which latter motion was granted.. . It is established by the evidence that the pipe in question was in the exclusive control of the defendant and used exclusively by him. The obligation rested upon him as tenant, under the lease, to keep the same in repair; and, in the absence of explanation as to the cause of the accident, the happening of the accident was presumptive evidence of negligence on the part of the defendant. See Silverberg v. City of New York, 59 Misc. Rep. 492; Mullen v. St. John, 57 N. Y. 571; Aschenbach v. Keene, 92 N. Y. Supp. 764.

On all the evidence presented, the plaintiff’s motion for judgment should have been granted. See Simon-Riegel Cigar Co. v. Gordon-Burnham Battery Co., 46 N. Y. Supp. 416.

The judgment in favor of the defendant should, therefore, be reversed, and a new trial ordered, with costs to appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered.  