
    David Rothblatt, Respondent, v. Max Solomon, Appellant.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Negligence—Actions — Evidence — Presumptions and burden of proof — Presumption of negligence from happening of accident — Injuries from overflow of water.
    Where a person found Ms shop overflowed by water and his goods injured and proves that he found in the loft of the defendant, above Mm, the floor wet and paper boxes and other articles soaked with water; that there was a sink and water faucet in that loft and that in the top floor, which was next above it, he found everything in normal condition, there is sufficient proof to raise a presumption of negligence on the part of defendant.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, second district, borough of Manhattan.
    Phillips & Samuels, for appellant.
    Joseph Kleiner, for respondent.
   Per Curiam.

The action was brought to recover damages alleged to have been sustained by plaintiff through an overflow of water which is alleged to have come from defendant’s place of business. Plaintiff was engaged in the leather business and occupied part of the first floor of 261- Bowery. The defendant occupied the whole of the floor above. On September 17, 1907, the plaintiff left his business. Plaintiff testified that, when he returned to his shop on September nineteenth, he found it full of water; and water was running down the walls — almost all of his stock submerged, etc. He went to the top floor of the building, where he found everything in normal condition; then descended to the floor below, which was occupied by defendant, and here he found the floor wet and paper boxes, etc., soaked in water. There was a sink and a water faucet in the loft occupied by defendant.

The court below gave judgment for the plaintiff. Plaintiff, having proved that the defendant was in exclusive possession of the loft in which the sink and faucet from which the overflow came were located, and having proved the injury and where the overflow occurred, made out a prima facie case. Moore v. Goedel, 34 N. Y. 531.

The evidence adduced by defendant was properly found by the court below not to negative the case made out by plaintiff, and defendant failed to overcome the presumption cast upon him by law.

Judgment should be affirmed, with costs.

Present: Gildersleeve, Dayton and Gerard, JJ.

Judgment affirmed, with costs.  