
    Clifford A. Spencer, App’lt, v. Peter J. McManus, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    1. Negligence—Leakage of water.
    Where, in an action for alleged negligence in allowing water to leak through the floor of premises occupied by the defendant from an open faucet in a toilet room, it appears that the defendant and another party were in the occupation of such toilet room, the plaintiff is not entitled to a judgment without showing that the faucet was left open by defendant or his servants.
    3. Same.
    That such other party was not a legal tenant of such toilet room, is immaterial.
    Appeal from a judgment of the county court, reversing," without opinion, a judgment of the city court of Albany.
    Montignani, Mallory ■& Elemendorf (George H. Mallory, of counsel), for app’lt; Reilly & Hamilton (J. Murray Downs, of counsel), for resp’t.
   Per Curiam.

The dictum in Moore v. Goedel, 34 N. Y. 547, that, if the defendant had been in the exclusive possession of the place from which the overflow came, “it would probably have been sufficient prima facie to have proved the injury and where the overflow occurred,” was doubted in Harris v. Perry, 89 N. Y. 308-314, the court saying, in reference to the above-quoted sentence: “That remark goes far enough, for it may at least be doubted whether the mere fact that an injury occurs on premises under the control and in the possession of a party raises any presumption of wrong against him.” Assuming, however, that the plaintiff "made out a prima facie case of negligence against the defendant by showing that he was damaged in consequence of water escaping from, a faucet left running in a toilet room rented to and occupied by defendant, we think the testimony produced by the latter on the trial fully met this prima facie case, and showed the absence of negligence on the part of defendant. The faucet was left running between Sunday and Monday mornings, defendant’s store being closed the Saturday evening before, and not opened until after the accident, and only one of defendant’s employes being there in the interval. He testified that at nine o’clock, Sunday morning, he locked up the toilet room in question, the faucet being then turned off, and found the door locked Monday morning, and the faucet turned on. The defendant fairly proved that the faucet was not left open by himself or servants. The door was kept locked.. It is not claimed that the faucet was not in good order. Although it might have been sufficient, in the first instance, for plaintiff to show the overflow and injury, after above evidence was in we are unable to see how the trial court could find that plaintiff had made out a case of negligence against defendant. The act of turning on the water was that of some wrongdoer, and the presumption that such wrongdoer might have been defendant or his servants was negatived by the testimony given on the trial.

It appeared that the Empire band had a key of the toilet room, and used it. As far as the evidence shows, they did so without any license or right. It does not appear that the servant of defendant who assumed to license them had any authority to do so, or that defendant had any knowledge of the matter. In fact, the defendant and another party were in occupation of the toilet room, and plaintiff was not entitled to judgment without showing that the faucet was left open by defendant or his servants. Moore v. Goedel, supra. It makes no difference in this case that the Empire band was not a legal tenant of the toilet room. They were there as they would have been if a tenant, and hence the presumption that might exist, if defendant had been the sole occupant of the room, that his negligence caused the injury, could not be entertained. The negligent act of leaving open the faucet might have been that of the Empire band. If defendant gave a license to the Empire band to use the toilet room, we are unable to see that that fact created any liability against him; nor was he liable for the negligent act of the band or its members. Stevens v. Armstrong, 6 N. Y. 435.

The judgment should be affirmed, with costs.  