#### Charles Wiley et al., Appellants, *v.*Simon M. Bondy et al., Respondents.

(Supreme Court, Appellate Term,

June, 1898.)

Negligence — Overflow of water upon tenant beneath.

In an action where damages were sought for alleged negligence, it appeared that a bath-tub, directly over a part of the floor of the plaintiffs, was found in the morning full of water, -that the faucet was turned on, that there was some water on the floor of the bathroom, that the ceiling 'of the plaintiffs’ room had fallen down and that the walls were soaked with water, which was also dripping from the ceiling. Although the bath-room was under the control of the defendants, they showed that it was never used for bathing purposes, that no one ever went into it, except the partners and their stockman, that no one could go into it unless some of these persons saw him, that they had seen no one go into-it, and had not themselves turned on the faucet. They also' showed that a plumber, in no manner an agent of the defendants, had been in the bath-room on the day before the overflow.

Held, that, while the plaintiffs had clearly established a *prima facie*case, the court would not interfere with the decision bf the court below, made upon the whole case, that the plaintiffs were not entitled to recover.

Appeal from a judgment of the Municipal Court of the City, of New York, borough of Manhattan, for the third district, rendered in favor of . the defendants after a trial before the justice of said court,' without a jury.

T. W. Foster, for appellants.

Louis Steckler, for respondents.

Gildersleeve, J.

In September, 1897, the plaintiffs ó occupied, for business purposes, the basement and first floor of the premises No. 53 East Teúth .street, in this city. The defendants occupied, and were in possession and control, as tenants, of the second floor of said premises, which included a room in which was a bath, with two. faucets opening into the same-. The defendants also occupied *659the second floor of an ¡adjoining building, communicating with the second floor, above mentioned, by means of a door. This adjoining building was not the property of the landlord from whom the Tenth street premises were rented, but belonged to the Lorillard estate. In the morning of September 11,1891, the plaintiffs’ premises were found to be injured, and some of their property destroyed, by reason of the overflow of water from the premises occupied by defendants, as aforesaid. The ceiling of the plaintiffs’ back room, which was under the bath-room on the defendants’ floor, had fallen down, the walls were soaked with water, and water was upon the floor, while drops of water were hanging, to the ceiling, and the mortar and lath were damp. The claim- of the plaintiffs, that the overflow came from the bath-room on defendants’ floor, is fully established by the evidence. The testimony shows that 'an inspection of the bath-room, at the time, disclosed the fact that the faucet was turned on; that the tub was full ¡of water to the top; and that there was some water on the floor. It further appears that, although there was no water- running at the time, the water pressure in that neighborhood was much greater at night than in the daytime; and from all the circumstances disclosed, the conclusion is irresistible that the water came from the overflow of the bath-tub in defendants’ premises on the previous .night. The plaintiffs brought this action to recover damages for the injury sustained by reason of this overflow. As we have seen, the overflow came from defendants’ premises, and was brought about by some one leaving the faucet on defendants’ premises open during the night, and omitting to remove the stopper from the tub. The bath-tub was shown to be in the control of defendants, and, in the ordinary course of things, an overflow like the one in question does pot happen if reasonable care is used. In the absence, therefore, of any explanation by the defendants, it might well be said that the over-4ow arose from want of care on the part of the defendants. The facts, above set forth, clearly established a *prima facie*case of injury to the plaintiffs from the defendants’ negligence. The-motion, therefore, to dismiss the complaint at the end -of the plaintiff’s case was properly denied. See Greco v. Bernheimer, *17*Misc. Rep. 592; Simon-Reigel Co. v. Gordon-Burnham Co., 20 id. 598.

The excuse or explanation offered by defendants is as follows: That the bath-room was not used for any purpose; that it was located at the extreme end of the left; and there were basins and toilets in other parts of the building for the use of the employes, *660which were at least thirty feet from'this bath-room; that the room adjoining the bath-room, and forming the left of 53 East Tenth ' street, was used as a cloth and stock room, and no one could get into the stock-room, and, therefore, by no possibility into the bathroom, without passing the'defendant, Isidor Krotosky, or the stock- ' man, or Isaac Krotosky,'who was ¡there in charge whenever Isidor was absent; that no one ever went into the stock-room, except the partners, and the stockman; that no one ever had permission to go into the stock-room, except these men; that no one of. the employees went into the bath-room, for the reason thát neither of the partners, nor the stockman, nor Isaac Krotosky, ever saw any one go in, and that they, or one of them, would have been certain to have seen any one who attempted to go into that bath-room; that none of the partners nor the stockman ever used the bathroom themselves, and neither of them turned on the faucet or. put in the stopper in the tub. It does. appear? however,' from the testimony, that a. plumber, in" the employ of the Lorillard estate, went through the entire premises, including this bath-room, the. day before the flood. It does not appear that this plumber was, in any way, the agent of the defendants; and if he left the faucet open, it was not the act of the defendants or of one for whose act they were responsible.

.We thus see that the defendants offered much evidence, in explanation of the mischief complained of, which tended to negative want of care on their part. They did not deny the overflow, nor the injury paused thereby, but contested their alleged liability by undertaking to show that they exercised every reasonable care in regard to the .tub" and faucets; and they established ia series of-facts, if the trial justice gave credit to the testimony offered, tending to show their freedom from negligence. The duty devolved upon the trial justice of determining, by a consideration of all the testimony, including the presumption created by the introduction of the plaintiffs’ testimony before explanation on the part o£_ the defendants, whether or not the alleged negligence of the de- ■ fendants was established. The harden of proof was upon the plaintiffs to show, by a -fair preponderance of 'evidence, negligence on the part of defendants. The burden of proof always remains upon the party who. has the affirmative of the issue. From certain facts presumptions may arise, but those presumptions are merely evidence, like other proof in the case. When the case was finally submitted to the justice, weighing presumptions, proofs and all the evidence, the burden of proof was upon the plaintiffs to establish affirmatively *661the negligence of the 'defendants. A presumption does not shift the burden of proof. See Jones v. Union Ry. Co., 18 App. Div. 267. The learned trial justice has decided that the plaintiffs have not met the requirements imposed upon them in this respect, and with that decision we do not feel called upon to interfere.

There are no questions of law presented on this appeal that require discussion, and it follows that the judgment should be affirmed, with costs.

Giegkerich, J., concurs in result.

Beekman, P. J. (concurring):

It may have been sufficient to make out a *prima facie*case for the plaintiffs to show that the overflow which occasioned the damage came from the defendants! premises through a faucet which had been left open without evidence tending to show that this condition had been produced by the defendants themselves or someone in their employ. Moore v. Goedel, 34 N. Y. 527; Greco v. Bernheimer, 17 Misc. Rep. 592; Simon-Riegel Cigar Co. v. Gordon B. Battery Co., 20 id. 598. Assuming that such is the law, the rule still applies which requires the plaintiff to make out his case by a preponderance of evidence, and the burden of so doing continues with him to the close of the whole case. In other ¡words, the presumption of fact upon which, in certain cases, the plaintiff may rely in the first instance in support of his case are rebuttable, and when the defendant has offered proof which dispels the presumptions, the plaintiff must resume the burden of establishing his cause of action by additional evidence.

In the case at bar, the evidence was purely circumstantial and inconclusive. The trial justice might well have come to the conclusion that it was so evenly balanced that there was no preponderance in plaintiffs’ favor, in which event, of course, it was his duty to dismiss the complaint. It is contended, however, that the defendants as a matter of law were guilty of negligence because they did not inspect the faucet from whichl the water appears- to have come, before leaving their premises on the night prior to the accident, and reference is made to the case of Simon-Riegel Cigar Co. v. Gordon B. Battery Co., *supra,*in support of this claim. That case, however, is quite different in its facts from the one under consideration. It may be that there is such a duty which the law recognizes where the faucet is in daily use, as it was in 'that case, but in the case at bar, it was shown that the bath-room where the *662faucet was, with its present equipment, was in the building when the defendants took their lease of the premises, that it was not adapted to the uses for which the premises were occupied, and that it had never been used for the purpose of drawing water by either the defendants or their employees. It can hardly be said, therefore, under these circumstances and as a matter of law, that any duty rested upon the defendants óf malting a nightly inspection of the plumbing of this place.

. The case was tried before the justice below without 'a jury, and it was for him to determine whether, under all the circumstances of the case, the defendants had acted in the matter with ordinary prudence and care. How the faucet came to be open in no way appears. It was claimed by the plaintiffs that-it must have been the act" of the defendants or their servants. On the other hand, the defendants insisted that it must have been turned on by a plumber who had been employed by their landlord to make, some changes in the plumbing elsewhere in the buildings .and who in making some investigations had gone into the bath-room to look at the plumbing there the day before the accident took place. It was for the trial justice to draw such inferences from the facts proven as in Iiis judgment they seemed tó warrant, ,and the burden rested upon the plaintiffs of establishing -their cause ®f action to his satisfaction by a fair preponderance of proof. As we have already said, he'might well, however^ have determined upon the facts disclosed by the' record that the evidence ¡was .'evenly balanced, and that the plaintiffs had not sustained the burden of proof which the law cast upon' them. Doubtless that was the reason why he dismissed the complaint; It is well settled that this court will not interfere with the action of the court below with respect to the weight of evidence, except to prevent palpable injustice in cases where his determination in that regard is obviously ¡wrong.

The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.