
    Henry Aschenbach, Respondent, v. Alfred A. Keene and Irving A. Keene, Appellants.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Negligence — Overflow of water from faucet — Evidence.
    Where the tenant of a loft sublet a portion thereof to defendants and the employees of both used in common a water faucet therein, the mere happening of an overflow from the faucet is insufficient to establish a prima facie case of negligence against defendants.
    Where in an action for damages occasioned by such overflow it clearly appears that a remark of defendants’ manager, if made, that one of the girls must have left the faucet open, was merely an expression of her opinion resting upon no actual knowledge of fact, it may not be considered as an admission.
    Appeal by the defendants from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.
    
      David C. Myers, for appellants.
    Arthur L. Fullman, for respondent.
   Scott, J.

If the evidence had shown that the defendants had sole access to the water faucet, the mere happening of the overflow would have been sufficient to establish, their responsibility- prima facie. The uncontradicted evidence, however, was to the effect that defendants sublet a portion of the loft from a man named Buckley, who remained in possession of the remainder of the same loft, and that while the faucet was physically within the boundaries of that portion of the loft occupied by defendants, yet that both defendants’ employees and those of Buckley had access to the closet in which the faucet was, and that in point of fact both sets of employees used the closet and faucet. Under these circumstances there was no presumption that the loss was occasioned by the negligence of defendants’ servants, for it might equally have been occasioned by the negligence of one of Buckley’s servants. The case, on the facts, is not to be distinguished from Moore v. Goedel, 34 N. Y. 527, which has frequently been followed in similar cases. Harris v. Perry, 89 N. Y. 308; Wiley v. Bondy, 23 Misc Rep. 685; Spencer v. McManus, 82 Hun, 318. The remark of defendants’ manager (if she ever made it) that one of the girls must have left the faucet open, cannot be treated as an admission of a fact, for it clearly appears to have been merely 'the expression of an opinion resting upon no actual knowledge of any fact to sustain it. The plaintiff failed to sustain the burden of proof and the complaint should have been dismissed.

O’Gorman and Blanchard, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  