
    Simon Strauss, Resp’t, v. William L. Hamersley, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    1. Negligence—Liability of landlord for damages to adjoining PREMISES CAUSED BY DEFECTIVE PLUMBING.
    The owner of premises which are in the possession of a tenant is not liable for injuries to adjoining premises caused by the defective condition of the plumbing, in the absence of proof that the premises were in a defective condition when let or that he omitted to make necessary repairs or failed to perform some duty imposed on him by statute with respect to the premises.
    3. Same—Lease—Insolvency of tenant.
    Proof that the tenant had failed or was insolvent does not necessarily show that his estate in the premises has become determined.
    Appeal from judgment of the fourth district court in favor of plaintiff in an action to recover damages for injuries to plaintiff’s premises, caused by the want of repair of the plumbing work on the adjoining premises owned by defendant.
    
      C. L. Cohn, for resp’t; W. E. Gilhooly, for app’lt.
   Bischoff, J.

In an action against the owner of premises to recover damages for injuries accruing from the defective condition thereof, where such premises at the time when the injuries were sustained are shown to have been in the possession or control of a tenant or lessee of the owner, the presumption is that the defective condition was the result of negligence on the part of such tenant, lessee or occupant, Kastor v. Newhouse, 4 E. D. Smith, 20; Edwards v. N. Y. & H. R. R. Co., 98 N. Y., 245, 251; and to overcome this presumption the person seeking to charge the owner must affirmatively show that the want of proper repair resulted from his negligent omission.

But to charge the owner with sufficient neglect, it must appear that the premises were in an unsafe or dilapidated condition when he let them, or that he relet the same after they had become unsafe and in want of repair, or that, contrary to his covenant, so to-do, he omitted to make the necessary repairs, Clancy v. Byrne, 56 N. Y., 129, 135; O'Brien v. Greenbaum, 23 N. Y. State Rep., 405, 407, or that he failed with respect to the premises to perform some duty imposed upon him by statute. Wood’s Landlord and Tenant, p. 618, par. 384; Taylor’s Landlord and Tenant, p. 123, par. 175.

Bearing the above in mind, we fail to perceive, in the case at bar, any facts wich would justify recovery against the defendant.

The evidence shows that plaintiff and defendant were the owners of adjoining premises and that the plaintiff’s premises were flooded by a leakage of water from the cellar of defendant’s premises ; that the store-floor and cellar of defendant’s premises were at the time in the possession or control of one McIntosh under a subsisting lease made by the defendant to him. It does .not ap- . pear that any part of the premises so demised remained under the control of the defendant or that the defendant agreed to keep the demised premises in repair.

No evidence whatever was offered from which it could be inferred that the defendant’s premises were in a defective condition-when the same were let to McIntosh, and the evidence of the defendant to the effect that the premises were in á-sufficient state of repair' when they were let to McIntosh, and that the latter during the term for which they were demised covenanted to do all needful repairs, remained wholly unchallenged by the plaintiff.

It is true that the plaintiff attemptedto show that the lease to McIntosh was no longer -in force, but the only evidence offered in that behalf was the plaintiff’s statement that McIntosh had failed, but it did not follow that because of McIntosh’s insolvency his estate in the defendant’s premises had become determined"; and the defendant’s uncontroverted statement that the rent for the demised premises had been paid to him up to a- time long subsequent to the time of the happening of the injury to plaintiff’s premises -leads to the conclusion that the lease was then in full force and effect.

Counsel for respondent, in his brief on this appeal, calls our attention to the fact that the lease in evidence refers only to the store and basement, and that inasmuch as the leakage complained of is alleged to have occurred in the cellar of defendant’s premises, and it not appearing that the cellar was demised to McIntosh or some other person, it must be presumed to have been in the possession or control of the defendant. The record of the proceedings at the trial, however, shows that the terms “ basement ” and “cellar ” were applied to one and the same part of the premises demised to McIntosh, and we cannot, therefore, in justice to the defendant, for the purpose of this appeal, assume that the “ cellar" referred to premises other than those included in the lease.

The judgment should be reversed and a new trial ordered, with costs to abide the event

Daly, Ch. J., and Pryor, J., concur.  