
    Mary Queeney, Respondent, v. George Willi, Jr., Appellant. John J. Queeney Respondent, v. George Willi, Jr., Appellant.
    First Department,
    March 3, 1916.
    Landlord and tenant — liability of landlord for damages resulting from freezing and bursting of water pipes — notice to landlord — pleading — complaint — proof not within scope of complaint.
    Where in an action against a landlord to recover for injuries sustained by the plaintiff while a tenant of an upper apartment resulting from the freezing of pipes leading from a tank above the roof, it appears that the building had not been constructed by the defendant and was purchased by him three years before the accident; that the pipe running from the tank to the roof was protected, but underneath the roof and above the ceiling was not protected, and there was nothing to indicate to the defendant that the pipe was not sufficiently protected between the ceiling and the roof to prevent freezing and he had no notice thereof, the subsequent bursting of the pipe must be deemed an accident and the consequent injury one for which the defendant is not responsible.
    Where in such an action brought by a wife and in another action by the husband for the loss of services it is merely alleged by both plaintiffs in effect that the bursting of the pipe allowed a large quantity of water to enter the apartment and to cause the plaster to fall and thereby render the rooms damp and dangerous to the health of the plaintiff, it is error
    
      to allow proof that the plaster in falling struck the wife, thereby causing physical injuries, although such injuries were specified in a bill of particulars.
    The defendant was only bound to use reasonable care to keep the premises in a safe condition for his tenants.
    DowXiiire, J., dissented in part, with memorandum.
    Separate appeals by the defendant, George Willi, Jr., in each case from two judgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the clerk of the county of New York on the 8th and 9th days of July, 1915, respectively, and also from two orders entered in said clerk’s office on the 12th day of July, 1915, denying defendant’s motion for a new trial in each case made upon the minutes. The judgment in each case was rendered upon the verdict of a jury, in the first case for $3,000, and in the second for $250. The first action was brought by Mary Queeney to recover for injuries sustained by her while a tenant in one of defendant’s apartment houses, and the other by her husband to recover for the loss of services. The right to recover in both actions depends upon the same facts.
    
      Stephen P. Anderton, for the appellant.
    
      Herbert C. Smyth, for the respondents.
   Smith, J.:

Upon the 13th day of February, 1914, a water pipe in the ceiling above the plaintiff’s apartment froze and burst. This caused the plaster to fall and a large amount of water to come into the apartment. The plaintiff Mary Queeney has recovered a verdict of $3,000 for injuries received both by being struck by the plaster which fell and also from sickness and ill health caused by the dampness of the apartment.

The judgment is challenged upon two grounds: First. It is claimed that the complaint did not authorize a recovery for physical injuries caused by the falling of the plaster. Second. It is claimed that the d efendant was not negligent, as he was without notice of any condition which might cause the freezing of the pipes above the plaintiff’s apartment and the consequent injury. In my judgment the challenge is good upon both grounds.

It seems clear in both actions that at the time the complaint was drawn it was not in the mind of the pleader to recover for any personal injuries sustained by the falling of the plaster. The allegation in the John Queeney suit is to.the effect that the bursting of the pipe allowed a large quantity of water to escape and enter the apartment occupied by the plaintiff and his said wife, Mary Queeney, and to flood the same and to cause the plaster upon the ceilings to fall and thereby rendered the said apartment damp, wet, cold and dangerous to the health of persons occupying the same, including the said Mary Queeney, plaintiff’s said wife.” In the suit by Mary Queeney the allegation is that the bursting of said pipe allowed a large quantity of water to escape and enter the apartment occupied by the plaintiff and her husband and to flood the same and cause the plaster upon the ceilings to fall and thereby rendered the said apartment damp, wet, cold and dangerous to the health of persons occupying the same, including this plaintiff.”

It would seem from these allegations that the defendant was called upon to defend an action for damages for injuries caused by the dampness which was the result of the bursting of the pipes, those injuries including, among other things, the miscarriage of the wife. To allow proof, therefore, that the plaster in falling struck the plaintiff, thereby causing physical injuries, was beyond the scope of the complaint, and, although specified in the bill of particulars, was not justified by the pleading and was, I think, error requiring a reversal of this judgment.

But the plaintiffs’ difficulty is, in my judgment, more substantial. The defendant’s duty was to use reasonable care to keep these premises in a safe condition for his tenants. The plaintiffs occupied the upper apartment. The water was furnished to that apartment from a tank, which. was above the roof. The pipe running from the tank to the roof was protected by a box in which manure was packed. The pipe under neath the roof and above the ceiling was not protected. The evidence of the plaintiffs is to the effect that due care required the protection of this pipe from freezing. But the house was not constructed by the defendant; he had purchased it three years before the accident and had had no difficulty from the freezing of this pipe, and no notice is shown to him that said pipe was not covered or adequately protected from freezing,

even if we assume that such was the proper care to be taken of such pipes. The plaintiffs swear that the ceiling and the walls were to an extent damp for two weeks before this accident, and it is suggested that this was proof of the sweating of the pipes, which would indicate to the defendant or his servants that the pipes were not covered. It is claimed that both the defendant and the defendant’s servant had notice of this continued dampness for two weeks or more. It cannot reasonably be said, however, that dampness of the plaster upon the ceiling or the side walls would indicate any sweating of pipes above the ceiling. This inference is too remote upon which to charge the defendant with legal liability for the subsequent bursting of the pipe. Furthermore, this dampness could not have come from anything at all serious, otherwise within the two weeks’ time the plaster would have become so wet as to have fallen by reason thereof. The defendant and the defendant’s servant deny absolutely that there was any notice that the ceiling or the walls had been wet at all. Assuming, however, that this was a question of fact for the jury upon the plaintiff’s testimony, there was nothing to indicate to the defendant that this pipe was not protected sufficiently between the ceiling and the roof to prevent freezing. Without such notice the subsequent bursting of the pipe was an accident, and the consequent injury was one for which the defendant is not responsible.

I am of opinion, therefore, that the judgment should be reversed, with costs in both cases, and the complaint dismissed, with costs.

The finding of fact that the defendant was guilty of negligence is reversed.

Clarke, P. J., McLaughlin and Davis, JJ., concurred; Dowling, J., dissented in part.

Dowling, J. (dissenting in part):

I dissent from the dismissal of the complaints herein and from the reversal of the finding that the defendant was guilty of negligence. I believe, however, that the judgments appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event, on the ground that reversible error was committed in allowing proof of the damage sustained by Mary Queeney by reason of the fall upon her of part of the ceiling, such damage not being within the allegations of the complaints.

Judgments reversed, with costs, and complaints dismissed, with costs.  