
    James W. Slater, Respondent, v. Ernest N. Adler, Appellant.
    (New York Common Pleas—General Term,
    May, 1894.)
    Where there are two tenants in occupation of premises, one above the other, each is bound to see to it that no injury shall happen to the other by reason of any negligence on his part.
    Where the goods of the lower tenant are injured by an overflow of water in the apartments of the upper tenant caused by a waste pipe becoming choked up, the latter is liable for such damage, although the former could have stopped the flow by means of a stopcock on his own premises.
    Appeal from a judgment of the District Court of the city of Hew York for the eighth judicial district.
    
      Leon Lewvn, for appellant.
    
      Jamies F. Higgins, for respondent.
   Per Curiam.

This action was brought to recover damages caused by the negligence of the appellant or his servants in permitting water to overflow from his premises down and upon and over the stock and machinery of plaintiff’s assignors. From the case it appears that the appellant occupied the top loft and respondent’s assignors the loft beneath at No. 5 Dutch street in this city, and that on the night uf the 30th of November, 1893, certain police officers discovered water running from the appellant’s premises on those of the respondent’s assignors, causing injury to the stock of the latter.

Where there are two tenants in occupation of the premises, one being above the other, while it is true that there is no contractual relation between them, yet each is bound to see to it that no injury shall happen to the other by reason of any negligence on his part. The case shows that there may have been a stopcock on the floor occupied by respondent’s assignors ■ which could be reached by both them and the appellant, yet the evidence makes it clear that there was also a stopcock on the floor of the appellant’s premises, and that the water which ran on the respondent’s premises flowed through that stopcock into barrels, from which there was a waste pipe which probably, for some cause which does not appear, became choked up. This made the appellant liable. Moore v. Goedel, 34 N. Y. 532; Eakin v. Brown, 1 E. D. Smith, 36; Totten v. Phipps, 52 N. Y. 356.

' The judgment should, therefore, be affirmed, with costs.

Present: Bookstaver, Bischoff and Pryor, JJ.

Judgment affirmed, with costs.  