
    James Reilly, Respondent, v. Hiram Merritt, Impleaded, Appellant.
    (New York Common Pleas
    —General Term,
    April, 1895.)
    During plaintiff's absence from his store, a plumber sent by defendant, who was agent for the building, entered to do pertain repairs to the water pipes. On plaintiff’s return ho found certain groceries missing and his icebox and oil tank injured. In an action of trespass to recover for such injuries no proof was given to connect the plumber with the loss of the groceries, hut evidence as to their value was received, and no proof as to the damage to the icebox and oil tank was given. Held, that a judgment in favor of the plaintiff for twenty-five dollars was without evidence to support it, and could not be sustained.
    Appeal by defendant from a judgment in favor of plaintiff, in the Fourth District Court, for twenty-five dollars damages, besides costs.
    The plaintiff complained against the defendant for trespass, and the defendant answered, “ General denial, bill, justification.”
    
      Ocmnon c6 Atwater, for appellant.
    
      Samuel Mullen, for respondent.
   Daly, Ch. J.

The evidence showed that the plaintiff was a tenant of premises of which defendant was general agent. Plaintiff occupied the store floor and had there an icebox, an oil tank and certain grocer’s goods in cans. While he was absent, a plumber, under defendant’s directions, came to the premises, and, by permission of plaintiff’s wife or his daughter, entered to make certain necessary repairs to the Croton water fixtures, which were leaking. When plaintiff returned he found some of his goods missing, his icebox pulled apart and his oil tank bursted. He was not able to connect the plumber' with the disappearance of the groceries, but the testimony justified the inference that the icebox and oil tank had been moved by him in getting at the pipes, and it is claimed on his behalf that the judgment of twenty-five dollars rendered by the justice was compensation for the injuries done to those articles. There was no evidence, however, of the amount of ■ damage inflicted by the plumber, since there was no proof of what it would cost to repair the articles in question. The plaintiff testified that the icebox cost him thirteen dollars and the oil tank twenty-five dollars three years before the trial, but this was no evidence of the cost of repairs. Nor can we say from the record before us that no part of the damages was awarded by the justice for the loss of the groceries. He admitted proof of their value under the objection of defendant, although there was not the slightest evidence that defendant was responsible for abstracting them. No damages were allowable for entry upon the plaintiff’s premises, because it was the landlord’s privilege, as well as duty, to make repairs necessary for the fixtures common to the. whole house, as in this case.

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

Bischoff and Pryor, JJ., concur.

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