
    Louis Steinweg, Resp’t, v. Abraham Biel, App’lt.
    
      (Supreme Court, Appellate Term, First Department,
    
    
      Filed February 26, 1896.)
    
    Negligence—Water leaking through floor.
    A person in possession of the floor of a building from which water leaks to a lower floor is not liable for the damage, when it is shown that the overflow was caused not by some negligence on his part, but by rata making a hole in the water pipe under the floor, during the night.
    Appeal from a judgment in favor of plaintiff,
    A. H. Berrick, for app’lt; Myers & Bronner, for resp’fe,
   McADAM, J.

The action was to recover damages caused to the plaintiffs property by water coming during the night from the fourth loft of premises No. 346 Canal street, in possession of the defendant, into thatoccupied by the defendant immediately below. The more fact of the overflow established no wrong nirainst the defendant. Spencer v. McManus, 82 Hun, 318; 63 St. Rep. 500; Clarke v. Anderson, 2 City Ct. R. 115, 229; Loeber v. Roberts, 42 St. Rep. 687; affirmed, 138 N. Y. 606; 51 St. Rep. 932; Bernhard v. Reeves (Walsh.) 33 Pac. 873. The plaintiff was bound to go further, and establish that the overflow was caused by some negligence on the part of the defendant; and this he failed to do. He undertook to show that the cause of the damage was a leak in a pump supplying the closet on defendant’s loft with water, but the preponderance of evidence establishes that the causo was a hole made in the pipe during the night by rats,—, a thing which according to the plumbers testimony, occasionally happens in such cases. The water rushed out of this hole (which was under the floor) with force, and as soon as the plumber soldered it the trouble practically censed,—a circumstance which makes defendant’s theory signiiicant, if not almost incontrovertible. The dripping from tile pump continued, but no damage came from it, as the quantity was .too small to do harm. The defendant inspected his premises before lie left them for the evening, and found nothing out of order. • It does not appear that he omitted any precaution that a reasonably discreet man would have adopted. There is certainly _ no evidence establishing negligence, the gravamen of the plaintiffs case. The damage evidently came from a cause unexpected, and not generally guarded against even by prudent persons. It follows that the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event. .... -

All concur.  