
    The Olin P. Ely Company, Respondent, v. Benjamin T. Rhoads, Jr., sued as Benjamin T. Rhoads, Appellant.
    (Supreme Court, Appellate Term,
    December, 1899.)
    Negligence — Stoppage of bathtub outlet.
    A tenant who stops the outlet of a bathtub with a piece of cloth, or who permits it to become thus stopped, is responsible to the tenant beneath for damages resulting from an overflow of water from the tub.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court, eleventh district, borough of Manhattan.
    Burr & De Lacey, for appellant.
    Louis Frankel, for respondent.
   MacLean, J.

The parties were tenants of a common landlord, the plaintiff occupying the ground floor for a merchant tailoring shop, the defendant living in and controlling the apartment immediately above. During the afternoon of Sunday, there was discovered dripping through the ceiling, water which was from the overflow of a bathtub in the defendant’s apartment, the outlet of which was stopped or made smaller by a piece of cloth accidentally or purposely placed thereon, and which surplus water ran off easily upon removal of the cloth. The negligence on the part of the defendant’s household was apparent, and-scarcely gainsaid. That damage was done by the leak greater than the sum demanded in the complaint, and for which judgment was awarded, was proven and practically admitted. Mo exception taken upon the trial brings up reversible error. The judgment should be affirmed.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs.  