
    Rudolph Cohen, Appellant, v. Sarah F. Cotheal, Respondent.
    First Department,
    May 29, 1913.
    Landlord and tenant — negligence—injury to goods by water—evidence not establishing liability of landlord.
    Action by a tenant against his landlord to recover damages for injury to goods caused by water which escaped from a crack in the cylinder of a pumping engine. The lease of another tenant in the same building required him to operate the pumping engine and to keep it in good condition. The pumping engine was designed to fill a tank upon the roof of the building which supplied water to the tenants in the upper stories. It appeared that the water pipes in the building froze and the defendant’s agent, on being notified, sent plumbers to make repairs, .and they shut off the water from the building, but before the work was completed the weather moderated so that the pipes thawed and during the night the water escaped through a crack in the cylinder of the pumping engine. The water had been shut off from the building by the plumbers by means of a stopcock in the basement which was in the possession and under the control of the plaintiff, and the water which escaped from the cylinder was greater in quantity than that which could have come from the pipes and water tank. Evidence examined, and "held, insufficient to establish negligence upon the part of the defendant.
    A landlord is only liable for defects in the demised premises remaining under his control where he has actual or constructive notice thereof. Where there is no evidence of actual notice, constructive notice cannot be predicated without evidence of the existence of a defect discoverable by reasonable inspection for such length of time that it could have been discoverable, by the exercise of reasonable care.
    Appeal by the plaintiff, Rudolph Cohen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of November, 1912, upon the dismissal of the Complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.
    
      Milton Mayer, for the appellant.
    
      Francis Sims McGrath, for the respondent.
   Laughlin, J.:

This is an action iby a tenant against his landlord to recover damages to goods in the premises leased, caused by a leak of water from á crack in the cylinder of a gas pumping engine.

The defendant is the owner of premises known as No. 496 Broome street, borough of Manhattan, New York, and of a five-story loft building thereon. The plaintiff was in possession of the basement and first floor of the building under a lease with the defendant. The copartnership firm of Adler & Isaacs was in possession of the second and third floors; and their lease obligated them to keep the premises in repair, including repairs to the plumbing work, water, gas pipes and fixtures, at their own cost and expense, and to “take charge of and operate the gas engine in said premises and to pay for gas for same and keep said engine in good order and condition.” The fourth and fifth floors were occupied by other tenants. Water for the third, fourth and fifth floors was supplied from a tank on the roof of the building; and the.purpose of the pumping engine, which was on the third floor, was to keep that tank supplied with water, and to accomplish that the engine was operated from time to time, and it was designed to shut off automatically when the tank became full. The engine was owned by the defendant and is described as a “ Eider & Ericson ” double pump, consisting of a flywheel and two cylinders, with a ramrod in each cylinder; but one of the cylinders could be disconnected and the other operated alone. The only witness who described the method of operating the engine said: “When we wanted water'we lit the gas underneath the cylinder and had it lit for about ten or fifteen minutes when we started the flywheel going. * * *. When you lit the pump, it would start going, and kept the piston rods on each side of it. The piston rod was operated by the gas and when you got enough heat on, it started the flywheel and went going.” One of the jurors, who was an engineer, by consent described the engine as follows: “ There is a cylinder containing a ramrod with what they call a cylinder head inside, and as the gas engine causes the ramrod to go forward and backwards, it sucks the water up and pipes it beyond the cylinder head inside and' out, through another pipe, thereby forcing it up to the tank, or any designated place where the pipe runs; ” and he was permitted without objection to say, in answer to a question by the court, that he could not account for the crack in the cylinder. In the lease to plaintiff printed provisions' imposing the duty of keeping the premises, including all plumbing, in repair upon the tenant were stricken out before execution, leaving no provision on the subject. Prior to the execution of the lease under which the plaintiff held at the time in question,, he had occupied upper floors of the building as a tenant and the defendant had informed him that one Cammann was her agent and would do anything required if communicated with over the telephone, and during such tenancy certain repairs were made by the agent at the request of the tenant.

The plaintiff gave evidence tending to show that on or about the 9th or 10th day of February, 1899, the water pipes were frozen and that on going upstairs he found ice on top of the pump; that he notified defendant’s agent, who promised to ■ send a plumber; that within an hour and a half or two hours plumbers came and looked over the pipes and a meter which was installed in plaintiff’s basement; that the plumbers stated that ■the pipes were all frozen and that it would be necessary to take the- meter out and cut the water off from the building; that they removed the meter and four or five days later and on the fifteenth of February brought it back and connected it up and examined the pipes throughout the building and the pump and stated to plaintiff that the pump was frozen; that they -left about three o’clock in the afternoon, saying that they would return in a short time, but they did not until after the flooding of the premises; that in the mean time since the-pipes were first frozen no water flowed through them, but on the fifteenth the weather had moderated, but still on turning the faucets no water flowed from the pipes; that the plumbers before leaving on the fifteenth informed plaintiff that they had tried the pump “to see whether there was any water in there; there was no water,” and that “the pump was dry; ” that-the plumbers made no attempt to thaw out the pipes, and did no work “except in the basement on the meter;” that after the plumbers left other tenants ‘ tried to work the pump, but could not. They tried to heat it up—it would not work; ” that the pump worked, but no water came through it; and that .there was no leak until áf ter the Close of .business on the fifteenth. Ón the following morning a cylinder of the pump was found to be cracked, and large quantities of water had come through the crack and run down through the building, causing the damages of which the plaintiff complains. The plaintiff also testified that there was a stopcock in his basement which controlled the entire supply of water for the building, and that.the plumbers turned this stopcock off before they left the building the last time.

There is no evidence with respect to the capacity of the tank on the roof of the building, or as to whether or not there was water in it which had frozen; but, in view of the quantity of water which must have escaped according to the testimony of the plaintiff, it cannot -be reasonably inferred that there was sufficient water in the pipes and tank before* the water was cut off in the basement to account for the amount which flooded the premises. It is evident, therefore, that the stopcock in the basement, which was in the possession and'under the control, of the plaintiff, must have been turned on after the plumbers left in order to permit the flood of water into the pipes and building. The evidence indicates that the water, owing to the greater pressure, rose higher in the pipes at night than in the daytime, and it is quite probable that the ice in the pipes thawed sufficiently to permit the water to rise, and that it then escaped through the crack in the cylinder.

The negligence with which the defendant is charged is, in effect, the failure of the plumbers to thaw out the pipes and to discover the crack in the cylinder. Assuming that the defendant retained sufficient control over the pumping engine to make it her duty to her tenants, other than Adler & Isaacs, to inspect it and keep it in repair, which is by no means clear (See 2 Underhill Landl. & Ten. § 508 and cases cited; Levine v. Baldwin, 87 App. Div. 150; Peil v. Reinhart, 127 N. Y. 381; Dollard v. Roberts, 130 id. 269), although it is not, in- the view we take of the evidence, necessary to decide that question, we are of opinion that the plaintiff has failed to show that the defendant was negligent. The most favorable view of the evidence to the plaintiff would be that the cylinder was cracked at the time the plumbers were there, and that they either discovered it or should have discovered it; but even so it is difficult to discern any theory upon which negligence can be attributed to them since, according to the testimony of the plaintiff, they cut off the water from • the entire .building, which removed any danger that the premises would be flooded. Moreover, the evidence was insufficient to take the case to the jury upon the theory that the crack in the cylinder existed and was discoverable at the time the plumbers inspected the engine. If the crack was caused by water freezing in the cylinder, it would be the merest speculation to infer that the crack was caused while the water was freezing and then opened to such an extent as to render it discoverable on reasonable inspection. In fact, there is no evidence with respect to the length or width or location of the crack on the cylinder from which it might be inferred that it could have been seen if it then existed. The only theory upon which a landlord is liable for defects in that part of the demised premises remaining under his control is that he had actual or constructive notice of the defect, and there being no evidence of actual notice, constructive notice cannot be predicated without evidence of the existence of a defect, discoverable by reasonable inspection, for such a length óf time that it would have been discovered by the exercise of reasonable care. (Stackpole v. Wray, 74 App. Div. 310; Idel v. Mitchell, 158 N. Y. 134.) Furthermore, it may be that there was ice in the cylinder when the engine was set in motion by the plumbers or by the tenants after the plumbers left, and that heating the engine caused the crack, or that the stroke of the piston was such as to crush the ice between it and the cylinder with such force as to cause the crack; but whether, if that caused the crack, it was the result of the operation of .the engine by the plumbers or by the tenants cannot be inferred from the evidence with any degree of certainty, for, while it would likely take place, if at all, early in the operation of the engine, still there is no evidence with respect to the extent of the operation by the plumbers.

It follows, therefore, that the judgment should be affirmed, with costs.

. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment affirmed, with costs.  