
    Perkins v. Eighmie.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Negligence—Dangerous Premises.
    While plaintiff was the lessee of rooms in defendant’s building the boiler in the cellar, which furnished steam for heating purposes and to operate machinery in the building, exploded, causing the building to take fire, whereby plaintiff’s property was destroyed. No defect had been observed in the boiler until the day before the explosion, when a slight leak was noticed. A workman was immediately employed to remedy the defect, and while the boiler was in his hands the explosion occurred. Held, that no negligence on defendant’s part was shown.
    Appeal from circuit court, Dutchess county.
    Action by Stephen A. Perkins against George D. Eighmie. The complaint was dismissed, and plaintiff appeals.
    Argued before Dyicman and Pratt, JJ.
    
      O. D. M. Baker, for appellant. G. <& G. II. Williams, for respondent.
   Dykman, J.

The defendant in this action was the owner of a building in the city of Poughkeepsie, and in the month of September he rented to the plaintiff five rooms on the second floor of the building for a residence. The other part of the building was used as a factory, and in the cellar there was a boiler to make steam for the machinery in the factory and to furnish heat. The plaintiff went into the possession of the rooms, and occupied them until the night of the 8th day of November, 1888, when the boiler exploded, and set fire to the building, which was entirely destroyed, and with it all the household property and goods of the plaintiff, amounting in value to about SI,500. There was no defect discovered in the boiler until the morning of November 7th, the day previous to the explosion, when a slight leak was discovered, and the steam was let down to permit the reparation of the boiler, but on the morning of the 8tli the leak continued, and again the steam was run down, and a mechanic employed to repair the defect. That night, and while the boiler was yet in charge of the person employed to remedy the defect, the boiler, from some cause unknown, exploded and caused the fire which wrought the destruction. This action is against the defendant for the recovery of the damages which plaintiff has sustained by the destruction of his property by the fire. The complaint was dismissed on the trial at the close of the plaintiff’s case, and he has appealed from the judgment.

We discover no evidence in the case sufficient to charge the defendant with negligence. The boiler had been in use for a considerable time, and, although it may have been small for the purposes for which it was used, yet no imperfection or defect had been discovered, and no attention had been directed to any weakness in any part of the iron. Even the opening which permitted the leakage was neither serious nor dangerous. If there was any negligence on the part of the person employed to repair the boiler which resulted in the disaster, the defendant cannot be chargeable therewith. The person so employed was a skillful mechanic, and the work was left entirely with him. The relation of master and servant did not exist between him and the defendant. He was employed to obviate the difficulty discovered in the boiler, and the manner of so doing was left entirely to his judgment and discretion. This part of the case is covered by the cases of King v. Railroad Co., 66 N. Y. 181; Hexamer v. Webb, 101 N. Y 377, 4 N. E. Rep. 755; Olive v. Marble Co., 103 N. Y. 292, 8 N. E. Rep. 552. The judgment should be affirmed, with costs.  