
    David Stanton, Respondent, v. Edward E. Ashley et al., Appellants.
    Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff.
    Fromme Brothers, for appellants.
    W. H. Klinker, for respondent.
   Gildersleeve, J.

This is an appeal from a judgment of the Municipal Court, entered on the verdict of a jury, awarding damages to the plaintiff for the destruction of personal property, for the loss of the services of plaintiff’s wife, and for medical attendance furnished to his wife. It is claimed by plaintiff that his wife’s illness was brought about by reason of an overflow of water from the sewer in the premises occupied by plaintiff’s family. The defendants were the owners of the apartment-house in question, and' plaintiff was the janitor of the building, receiving as compensation for his services in caring for the house, rooms rent free, three dollars a month for soap and cleaning, one dollar a month for lighting the rear building, and one dollar for every flat they rented.. The injuries complained of were caused by an accumulation of cabbage leaves, rags and egg shells in the six-inch trap of the sewer,, running under the cellar floor, which choked the sewer pipe, causing the water to back up and overflow a portion of the cellar floor and part of the premises on that floor occupied by plaintiff and his family. The particular act of negligence, upon which the-plaintiff seeks to rest the liability of defendants, is alleged in the-complaint as follows: “By allowing the sewer and waste pipes-to become stuffed and to remain in an unsafe and improper condition.” It is further alleged that the said building and premises-were negligently and carelessly maintained by defendants, inasmuch as the waste pipes and sewers in said premises were defective. There is no evidence tending to show that the waste pipes, and sewers were not of good construction and suitable for the services demanded. There was no proof of any notice to defendants, from any previous similar accident, of the likelihood or possibility of the occurrence of the accident in question.

From a careful reading of the evidence, it must be said, as we-have above indicated, that the overflow was due to the accumulation of refuse in the sewer and waste pipes, which choked the sewer pipe, causing the water to back up and overflow, as above described. The overflow was first noticed at 8 o’clock in the morning. The plaintiff was away from home at the time. About one hour after the plaintiff’s wife discovered the overflow, she sent for Thomas Blake, the agent of the house. There was some delay in finding Blake, but, as soon as he was notified, he went at once to the house, and, within fifteen minutes after reaching there, removed the cause of the overflow. At the close of the plaintiff’s case, the defendants moved for a non-suit, on the ground that the cause of action alleged in the complaint had not been proved, and that no cause of action had been established. The motion was denied and-defendants excepted. The motion was renewed at the close of the-whole case, and was again denied, and defendants excepted.

We think the evidence shows that plaintiff was guilty of contributory negligence. As paid j anitor of the building, it was his duty to prevent the sewer and waste pipes from becoming stuffed, with refuse. He understood the functions of the sewer pipes and what to do in ease they became choked. He stated in his testimony that, had he been at home on that day, the overflow would not have happened. The failure on the part of plaintiff to perform the duty which he owed to the owners of the building, as their paid janitor, defeats his alleged cause of action.

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

Freedman, P. J., and McAdam, J., concur.

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