
    (51 Misc. Rep. 550.)
    BRICK v. FA VILLA et al.
    (Chautauqua County Court.
    October, 1906.)
    Landlord and Tenant—Injuries to Property—Negligence of Co-tenants.
    After defendants, as tenants, went into possession of the second floor of plaintiff’s building, persons attending a lodge on the floor above left their faucet open and' the water leaked into the rooms of defendants. Held, that such injury was no defense to an action for the rent; the landlord not being liable therefor.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 777, 778.]
    Appeal from Justice Court.
    Action by Henry F. Brick against Matthew Favilla and Jennie Favilla. Appeal from judgment of justice’s court in favor of defendants. Reversed, and new trial ordered.
    Stearns, Thrasher & Sullivan, for appellant.
    Thomas H. Larkin, for respondents.
   OTTAWAY, J.

This action was brought by the plaintiff to recover one month’s rent of certain rooms located upon the second floor of a brick building on Lyons street in the city of Dunkirk leased by the defendants. The evidence discloses that said premises were leased October 10, 1904, at the monthly rent of $10 per month. The defendants entered upon the occupancy of said premises October 10, 1904, and continued in said occupancy until the 22d day of February, 1905. The third story of said building was also leased by the plaintiff to a club -or lodge, who were in occupancy of the same. The building was supplied with water conducted into the different apartments by means of pipes. It appears that, shortly after the defendants went into possession, persons attending the club upon the floor above left the faucet attached to the pipe over the sink open, and water passed from these rooms into the rooms of the defendants. This matter was brought to the attention of the landlord. Upon the 13th day of February, 1905, the faucet was again left open, and the water again came down into the apartments occupied by the defendants. Shortly thereafter the defendants began preparations to remove from the building, basing their right of remove! upon these conditions.

It is the contention of the respondents that the building was rendered untenantable from this cause, and that the defendants were not liable to pay the plaintiff by reason of his failure to repair said building. In the absence of any agreement, the landlord was not bound to make repairs or changes in his building. Witty v. Matthews, 52 N. Y. 512; Franklin v. Brown, 118 N. Y. 113, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744. In the absence of any testimony tending to show that the fixtures connected with the water pipes were of improper construction, and the evidence in this case disclosing that the faucets in question were under the control of the tenants of the floor above, the plaintiff is not liable to the defendants for the damages occasioned "by the water, and the plaintiff is entitled to recover. Leonard v. Gunther, 47 App. Div. 194, 62 N. Y. Supp. 99. The occupants and lessees •of the floor above were liable to the defendants for all damages occasioned by them by reason of the overflow of water. The law does not require a landlord to prevent his tenants from annoying each other or from trespassing upon each other’s rights. It leaves them to seek redress for injuries of that character from those who directly inflict them. There being no wrongful act or omission of duty shown on the part ■of the landlord, there was no eviction.

The judgment herein should be reversed, and a new trial ordered before Rollin D. Snow, justice of the peace, November 21, 1906, at 10 a. m., with costs to the appellant to abide the event of the action. '

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