
    Henry Lissa et al., Pl’ffs and App’lts, v. Emil Goodkind et al., Def’ts and Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 6, 1889.)
    
    1. Negligence—When complaint properly dismissed.
    Where plaintiff failed to prove that the defendant, who occupied an upyer floor of the building in which plaintiff and defendant carried on their respective occupations, knew, or had reason to suspect, that plaintiff would suddenly stop shutting off the water on plaintiff’s floor every night, wkicn he had been in the habit of doing, and which if he had continued to do, no overflow there could have taken place—no duty was imposed on defendant of taking any precaution to avert an accident which he could not have expected or foreseen. Under such circumstances there was no-negligence proved, and the complaint was properly dismissed.
    
      Solomon Kohn, for app’lts; Bose & Putzel, for resp’ts.
   O’Gormau, J.

The learned trial judge in this case, after hearing evidence on behalf of the plaintiffs and of the defendants, directed a verdict in favor of the defendants.

In the statement made by the judge of his reason for his-ruling, he stated with clearness and precision the defect of the evidence for the plaintiffs, and I see no cause to dissent from his conclusion.

The plaintiffs failed to prove that the defendants, who occupied an upper floor of the building in which plaintiffs- and they carried on their respective occupations, knew, or had reason to know or suspect, that plaintiffs had made-any permanent change in their custom of shutting off the water on plaintiff’s floor every night.

If that custom had been adhered to on the night of the overflow on defendant’s floor, no overflow there could have taken place.

No duty was imposed on them of taking any precaution to avert an accident, which they could not have expected or foreseen.

Under such circumstances, there was no negligence on their part, and it was wholly caused by the negligence of the servant of the plaintiffs.

The case did not present- a question of conflict of evidence.

The great preponderance of evidence was clearly in favor-of the defendants, and if the case had been sent to the jury, and they had found a verdict for the plaintiffs, an appellate court would, doubtless, have directed a new trial. Dwight v. Germania Ins. Co., 103 N. Y., 358; 3 N. Y. State Rep., 115.

The judgment rendered in the case should be affirmed, with costs.

Sedgwick, Oh. J., concurs.  