#### Ignatz Lichtig, Respondent, *v.*Sophia E. Poundt, Appellant.

(Supreme Court, Appellate Term,

June, 1898.)

Landlord and tenant —Duty to repair — Megligencé.

Where tlie roof of. a rear one-story extension, forming a part of der ' mised". premises, has ho other reason for its existence than to protect the extension, the landlord is not liable to the tenant for damages resulting to his goods, stored in the extension, from" a flood which, in some unexplained manner, came through the ’ skylight in the roof of the extension; and particularly where it appears 'that that roof had been constructed within seven or eight months and was not shown to have been defective.

*633Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the City of Hew York, borough of Manhattan, eighth district.

George W. McAdam, for appellant.

Benno Loewy, for respondent.

Beekman, P. J.

This action was brought to recover damages for an injury to property alleged to have been caused by the negligence of the defendant. The latter was the owner of the premises Ho. 482 Eighth avenue in the city (of Hew York, and about the 1st day of October, 1896, leased a- portion of the same, consisting of the basement and store floor, to the plaintiff. ■ In the rear of the store, and forming a part of the demised premises, was a one-story extension, about twenty feet in depth. There, was no other structure or story above this extension, which was covered over by a roof, in the center of Which was a skylight. On the 10th day of June, 1897, á large amount of water, apparently coming from the roof of the extension, passed into the plaintiff’s store, damaging certain goods of his which were situated in the extension. The complaint, which is in writing, avers that the injury was caused by the negligence of the defendant in permitting “ the roof of ¡said store and basement to become old, rotten and leaky, and insufficient to withstand rain,' water and moisture which may descend upon it.” The answer interposed was a general denial. The action having been tried, the justice below awarded judgment in favor of the plaintiff, and it is from this judgment that the appeal is taken.

It-is contended by the defendant that the action cannot be maintained in view of the fact that the roof of the extension formed a part of the demised premises, and that even assuming that the landlord was under an obligation to repair the same, an action would not lie to recover damages such as are here complained of for a failure to perform such agreement. Schick v. Fleischhauer, 26 App. Div. 210. The counsel for the plaintiff, however, disputes the fact that ¡said roof was covered by 'his lease, claiming-that 'he had no control over it, nor access to it, and that the landlord had assumed the care of it. It is claimed that the case is similar to those in which the courts have held that the landlord is responsible to his tenants for defects in hallways and staircases occasioned by his negligence; but in all of those cases the landlord’s liability was *634predicated upon the fact that such places did not form part of the demised premises, but continued, under his control, with an associated duty, arising out oh the purpose for which they were intended and used, to see that they were reasonably safe.

In the casé at bar -the roof of the extension existed-for no other purpose whatsoever than as an inclosure of the extension. It formed a part of the extension and was essential- to its existence and use for the purpose for which it was constructed, so that in leasing it the roof in question formed as much -a part -of the de- ■ m.ised premises as the side and end walls which completed the inclosure—:all equally contributing to.the inclosure which gave existence to the subject-matter of the demise. ' I think, therefore, that the cáse comes within the rule laid down in Schick v. Fleischhauer, *supra,*and that the complaint should, therefore, have been dismissed.

But if I ani mistaken in this, I am still of the opinion that the plaintiff was not entitled to judgment on the facts. There was. no evidence whatsoever in the case showing 'that there was any defect in the roof which was the .proximate cause of the injury complained of for which the defendant could be held responsible. It was not shown that there was any hole, crack or crevice in the roof, as alleged in the. complaint, and what it was that caused the flood, as it was described, to enter the premises of the plaintiff was a matter of pure conjecture. There was- some evidence in the case tending to show that the leader from the roof - of the extension had become stopped up by reason of some foreign substances which had in some way got in it, and the theory of some -of the witnesses with respect to the cause of the occurrence, about which they. were, allowed to speculate with great freedom, was that the water accumulating upon the roof could not pass off owing to the stoppage in the leader, and continuing to rise, at length reached the top of the skylight, and in that way entered the premises in question. But as I have said, this was purely a matter of speculation on -their part. Assuming, however, that this was the cause .of the injury, it does not appear that the landlord was in any way responsible for.the stoppage of the leader, or that she had at -any time notice that, such was its condition.' Furthermore, the plaintiff has not in his complaint assigned this as a ground on which he claims that the defendant was negligent. The plaintiff has failed to produce any evidence whatsoever of any specific defect in the roof, but seems "to rest his case upon . a presumption thát because the -accident took place it must have *635been by reason of a defect in the roof for which the landlord must - be regarded as responsible. Mo such presumption, however, arises in such a case as this. He had it in his power to produce a witness who could have thrown some light upon the causes of the occurrence, but he failed to do so. According to his own evidence, on the day in question he sent his own plumber to the roof of the extension for the purpose of remedying the evil, and there is evidence tending ■ to show that he was successful, but what it was that he discovered there or what he did in no way appears beyond a statement made by one of tire witnesses of the defendant that in a conversation with the plaintiff the latter informed him that the difficulty was in the pipe, and showed him a piece of old broom and some glass which he stated the plumber had taken therefrom. The testimony offered on the part of the defendant showed that the roof upon the extension was new, having been constructed some seven or eight months before the occurrence; that it had been properly constructed, and' was sound and in all respects in good order ¡and condition. This was not contradicted by any witness produced by the plaintiff who had seen or made any examination whatsoever ,of the place.

After a careful examination of the record I am unable to discover sufficient evidence ¡of negligence on the part of the defendant to support a recovery in this action—certainly nothing to support a finding that there was the slightest preponderance of proof in favor of the plaintiff. The judgment should, therefore, be reversed.

Judgment reversed and new trial' ordered, with costs to the appellant to -abide the event.

Gildeesleeve and Giegebich, JJ., concur.

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