
    Curran v. Weiss et al.
    (New York Common Pleas—General Term,
    December, 1893.)
    By negligence of the defendants, who occupied the upper floor of a building, the water basin on that floor overflowed and the goods of plaintiff's-assignor, the occupant of the lower floor, were damaged. Held, that-plaintiff's assignor had a right to rely upon defendants’ observance of ordinary care, and was not bound to guard against its omission, and was not chargeable with contributory negligence, because he failed to check, the water supply over night by means of a cut-off.
    Appeal from a judgment for plaintiff recovered 'in a District Court in the city of New York.
    Action to recover damages for the negligence of defendants, or their servants, which resulted in the overflow of a water basin and injury to a stock of merchandise belonging to plaintiff’s assignor, the latter being at the time the tenant and occupant of the lower, and defendants the tenants, and occupants of the upper, portion of the same building.
    
      Campbell & Murphy, for plaintiff (respondent).
    
      Louis J. Vorhaus, for defendants (appellants).
   Bischoff, J.

The facts of the overflow and leakage of water from defendants’ premises to those of plaintiff’s assignor, and damage to the latter’s stock of merchandise, abundantly appear from the evidence and were conceded on the trial. Likewise, it appeared on the trial that the overflow was the direct result of the want of repair of an automatically closing faucet attached to the basin, and by means of which it was supplied with water, and the omission to remove the stopple from the gap of the basin. These last-mentioned facts unequivocally established negligence on the part of the defendants or their servants. Killion v. Power, 51 Penn. St. 429; Moore v. Goedel, 34 N. Y. 527, 532.

Defendants’ assumption that it was the duty of McKeown, plaintiff’s assignor, to check the supply of water to their premises over night by means of a cut-off ” located upon the premises of the latter was wholly unwarranted. McKeown’s lease did not impose such a duty upon him. Neither had he led defendants to believe that he would observe it. Samuel Weiss, one of the defendants, refuted any such inference by his admission that McKeown told him long before the overflow that he would do as he pleased about turning the water on or off. McKeown cannot, therefore, be said to have been guilty of contributory negligence because he failed to check the water supply. He had a right to rely upon defendants’ observance of ordinary care, and was not bound to guard against its omission. Anselment v. Paniell, 4 Misc. Rep. 144.

The legal ownership of the demand in suit having been transferred to plaintiff, he was entitled to recover notwithstanding the fact that the assignor expected to share in the recovery. Sheridan v. Mayor, etc., 68 N. Y. 30.

The judgment should be affirmed, with costs.

Giegebich, J., concurs.

Judgment affirmed, with costs.  