
    William H. Church, Respondent, v. Daniel P. Murphy, Jr., Appellant.
    (Supreme Court, Appellate Term,
    April, 1897.)
    Negligence — Injury to elevator "by tenant.
    • Evidence that the elevator in a building "was injured in its working gear, by being allowed to descend without regulating its speed by use of the check rope, while being used for the delivery of coal to the 'tenant of the upper floor and that at the time of the breaking some one on that floor inquired if anyone was hurt, is sufficient to call upon such tenant for an explanation of the occurrence, and in the absence . thereof to sustain an inference of his negligence.
    Appeal from judgment rendered by the justice, of the First. Judicial District Court in favor of the plaintiff.
    Action for injury to personal property.
    Miller & Miller, for appellant.
    John Callahan, for respondent.
   Bischoff, J.

The defendant was the lessee of the third and . fourth floors of the plaintiff’s premises, the remaining lower floors being leased to other parties, and the whole building, as occupied, was used for business purposes, being equipped with a hand-power freight elevator practicable through all the floors and . maintained by the landlord for the common use of the tenants.

• This elevator, or its operating gear, became broken, and the plaintiff brought this action to recover from the defendant the amount necessarily expended-for repairs claiming that the injuries were caused by the defendant’s handling of the apparatus; the court below found for the plaintiff and we are called upon to determine whether or not the evidence justified the result.

An examination of the record leads to the conclusion that it did.

To support his case the plaintiff showed that this elevator was in. good working condition on the day of the injury; that the defendant had used it to facilitate the delivery of coal to his part of the premises; that he was the last person who actually made use of it; that a noise accompanying its breaking was heard at about the time in the afternoon when it had been so used and that someone “ on Murphy’s floor ” had called out “ Is anybody hurt? ”

An expert witness testified that from the nature of the injury the elevator appeared to have been allowed, carelessly, to descend from the fourth story to the basement, where it was found, without use of the check rope to regulate the speed of its descent, and the plaintiff gave testimony that the defendant had stated to him that the man who delivered the coal had undertaken to- pull the car down and had broken the works.

While' nothing was shown from which the defendant’s responsibility for the coal-dealer’s act could be inferred, and there was no proof of an agreement between the parties whereby the tenant assumed liability for the negligence of persons using the premises in the usual course of business dealings with him, still we think that the evidence above detailed furnished sufficient proof of the defendant’s individual connection with the breaking of the apparatus to call upon him for an explanation of the occurrence and to support an inference of his negligence, should that explanation be not forthcoming or be unsatisfactory. 1 Shearm. & Redf. on Neg., §§ 59, 60; 2 Thompson on Neg. 1227-1236; Lyons v. Rosenthal, 11 Hun, 46, and cases cited. The explanation given by the defendant was that, after the delivery of coal had ended, the elevator car remained at the fourth floor until the tenant of one of the lower floors pnlled the rope and thereby caused the descending car to come in sudden contact with a closed trap at the third floor, but while this account, if accepted as true,, might have absolved the defendant it was not accepted by the justice, and we should acquiesce in his conclusion as to the credibility of this interested witness whom he had the advantage, which we have not, of hearing and observing personally.

Moreover the defendant was contradicted by the plaintiffs expert, who testified that this explanation was not borne out by the state in which the apparatus was found, and his testimony that the tenant of a lower floor pulled the rope was inconsistent with the statement, testified to by the plaintiff as having been made by him, that the coal man had set the elevator in motion.

The case may have been a close one of .fact and inference, but the determination by the justice was- not against the evidence and cannot be disturbed by this court.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  