#### Samuel Love and Others, Appellants, *v.*Globe Hat Manufacturing Company, Respondent.

Second Department,

December 30, 1908.

Negligence — injury to goods by overflow from vats maintained by cotenant — erroneous nonsuit.

Evidence in an action to recover for injuries to goods caused by leakage from dye vats maintained by a tenant on the floor above, and by water coming from a hole cut through the roof, examined and *held,*that a dismissal of the complaint was error.

Appeal by the plaintiffs, Samuel Love and others, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of May, 1908.

*Thomas P.*Hall, for the appellants.

*Samuel Rosenberg,*for the respondent.

Rich, J.:

The plaintiffs conduct a hat manufacturing business on the fifth floor of a building on Greene street; the defendant is a domestic corporation, occupying the sixth floor of the same building with its business of renovating old hats and making new hats from old ones. In its business it uses large vats containing dyes. The plaintiffs brought this action to recover damages claimed to have been sustained : *First,*in consequence of the dye in the vats leaking through the floor upon plaintiffs’ stock of goods; and, *second,*through the *622flooding of their floor and stock by water entering the building during a storm, through a hole cut in the roof by defendant’s order. Hpon the trial the plaintiffs,,to sustain their cause of action based upon the leaking of the dye, proved the character of defendant’s business; the respective location of the vats and of their stock, the use of dyes in its business which had on several occasions overflowed the sides of the cement flooring in the vat room, and found its way through places in the ceiling of plaintiffs’ place of business, causing damage for which plaintiffs had presented bills to the defendant. It also appeared that one Bregman, a carpenter, had been employed in defendant’s place of business under the immediate supervision of defendant’s foreman Buss, and the general supervision of one Goldman, whose relation to the defendant is not clearly shown. The carpenter testifies that he was the “ boss.” On the day that the work was completed Goldman directed Buss and the carpenter Bregman to cut a hole in the roof, through which steam could escape, after which he left the room. Bregman, on reaching the roof and discovering indications of an approaching rain storm, called the attention of the foreman Buss to that fact and suggested that the cutting of a hole be postponed, to which Buss replied that it was not raining; that it was none of his business, and directed him to *“*go ahead and do it.” Bregman then cut a hole in the roof, two feet by twelve inches, shortly after which it commenced to rain, and plaintiffs’ place of business and stock were flooded and damaged. The trial court dismissed the complaint at the close of plaintiffs’ evidence upon the ground that the evidence was not sufficient to establish the liability of defendant.

I think the plaintiffs etablished a *prima facie*case, both as to the damages sustained by reason of the leakage of the dye, and those sustained by reason of the flooding of their place of business, and that the exception to the ruling of the trial court dismissing the complaint presents reversible error.

The judgment of the Municipal Court must be reversed and a new tidal ordered, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.