Appeal from City Court of New York, Trial Term. Action by Selig Warshawsky and others against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment of the City Court for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Bayard H. Ames and F. Angelo Gaynor, for appellant. Max D. Steuer, for respondents. FREEDMAN, P. J. Assuming that the case as made upon the trial was one for the jury, the judgment cannot be sustained, because the damages were inadequately proved. The son of one of the plaintiffs, who was called to testify as to the repairs done to the wagon, was not qualified as to the reasonable value of the necessary repairs, and his testimony as to the cost alone was insufficient. Volkmar v. Third Ave. R. R. Co., 28 Misc. Rep. 141, 58 N. Y. Supp. 1021. Moreover, it was not shown that the horse for the value of which a recovery was had died as a result of the accident. The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. LEJOUNE v. DRY DOCK, E. B. & B. R. CO. (Supreme Court, Appellate Term. February 23, 1904.) 1. STREET RAILWAYS-INJURIES ON STREETS-CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF. Sending a case against a horse railway company for injuries to a person on the street to the jury on the sole question whether the driver was negligent in driving his horse at a gallop was error, as it relieved plaintiff of the duty of establishing freedom from contributory negligence. 2. SAME-RIGHT OF WAY. Between the blocks of a city a street railway has the paramount right of way over a pedestrian. 3. SAME-PROOF OF DAMAGES. Proof of damages for injuries should be taken only to the extent of supporting the claim as itemized in the bill of particulars. Appeal from Municipal Court, Borough of Manhattan, First District. Action by Joseph Lejoune against the Dry Dock, East Broadway & Battery Railway Company. From a judgment of the Municipal Court. for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Henry W. Goddard and William F. Weaver, for appellant. MCCALL, J. Under the charge in this case the court allowed the case to go to the jury on the sole question "whether the driver was negligent in driving his horse at a gallop and beyond the ordinary and 120 New York State Reporter gait of a horse car." He thereby erroneously relieved the plaintiff of the duty of establishing his freedom from contributory negligence, and the judgment cannot stand. It was also error to refuse the request of the defendant "that, inasmuch as the accident happened between the blocks, the defendant had a paramount right of way," and under the circumstances of this case this error was highly prejudicial. For the reasons assigned there must be a new trial, and on same the proof of damage alleged to have been suffered should be taken only to the extent of supporting the claim as itemized in the bill of particulars. Judgment reversed, and a new trial ordered, with costs to appeilant to abide the event. All concur. RUBENSTEIN v. HUDSON. (Supreme Court, Appellate Term. February 23, 1904.) 1. LANDLORD AND TENANT-DEFECTIVE PREMISES-LIABILITY OF LANDLORDNOTICE OF DEFECT-EVIDENCE. In an action by a tenant against her landlord to recover damages to furniture and wearing apparel, occasioned by an overflow of water, evidence held to show that defendant's superintendent had notice of a previous overflow of water at the spot where the subsequent overflow causing the damage occurred, within ample time to have repaired the same. 2. SAME-FAILUE TO REPAIR. Where a landlord, after notice, fails to remedy a defect in a part of the demised premises which remains under his control, he is liable for injuries sustained by the tenant in consequence of his negligence in this respect. 3. SAME-NEGLIGENCE OF TENANT-EVIDENCE. Where a tenant did not know that water was coming into her apartment, until, on going into her wardrobe, she observed a few drops, and thereupon the water came down in a volume, and she immediately took all articles of wearing apparel from the wardrobe and put them into another room, but they were ruined before removal, she was not guilty of negligence precluding her from recovering damages from the landlord. 4. SAME-DAMAGES-ACCIDENT-EVIDENCE. In an action by a tenant against her landlord for damages caused by an overflow of water in her apartment, where her evidence showed that the cost of the various articles of apparel ruined and the amount paid to repair the furniture amounted to $165, and defendant offered no proof on the subject, an award of $115 was warranted. Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Sadie Rubenstein against John H. Hudson, as sole acting trustee under the will of Stephen Philbin, deceased. From a judgment of the Municipal Court for plaintiff, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. John Vincent, for appellant. Raphael Link, for respondent. GIEGERICH, J. The action is for the recovery of damages to plaintiff's household furniture and wearing apparel through an over12. See Landlord and Tenant, vol. 32, Cent. Dig. § 660. flow of water into the flat on the ground floor, west side, of the house and premises known as No. 114 West Sixty-First street, in the borough of Manhattan, New York City, while occupied by the plaintiff, as a tenant of the defendant, on June 5, 1903. The pleadings were in writing, and the answer of the defendant, after admitting ownership and the occupancy of the plaintiff as a tenant, denies the other allegations of the complaint. It appeared in evidence that the overflow was caused by a hole in a water pipe, which was imbedded between the ceiling of plaintiff's apartment and the floor of the apartment immediately overhead, and extended through the building, and supplied water to all other tenants therein, and that such pipe was under the control of the defendant. The plaintiff testified that when she discovered that water was flowing into her apartment she complained to the defendant's superintendent, "who made little or no answer"; that within half an hour the water came down again, and she again notified the superintendent, upon whom, she further testified, she called three or four times, and that about the fourth time he said he would go upstairs, and notify the tenants not to use the faucets. The superintendent, on the other hand, gave testimony to the effect that when the plaintiff informed him of the overflow he immediately notified the tenants not to use the wash basins in their apartments, and sent for the plumber, who came the next day, and repaired the pipe. When the plumber reached the building, the flow of water had ceased, but, after taking away some of the plaster of the ceiling overhead where the wardrobe stood, he discovered a hole in the pipe. He further testified as follows: "Q. Was there any sign of the leak other than the discoloration of the plaster? A. That is all I could see. From the hole in the plaster I could see the pipe through that, so I had to take away the plaster all round to make it light all the way around." The plaintiff and her mother testified that a week or two previously to the overflow they each, and on separate occasions, notified the defendant's superintendent that water was coming down into the plaintiff's apartment from the very spot in the ceiling, over the wardrobe, where the hole in the pipe was subsequently discovered, and that, although he caused the ceiling to be repaired, it soon got into bad condition from water coming down at the same spot. The superintendent denied that any notification was given to him prior to the accident of any previous overflow, and testified that a month before "the place" over the wardrobe "had all been cleaned up," and that "there was no sign of any leak or any spots in the ceiling at that time." The defendant contends that the weight of evidence is in his favor upon the proposition whether or not a previous notice was given to his superintendent of the defect in the pipe that caused the overflow, but a careful reading of the record satisfies us that is not so, but that, on the contrary, the plaintiff has established by a preponderance of the evidence that the defendant's superintendent had notice of a previous overflow of water at the very spot where the subsequent overflow causing the damage complained of occurred, and that the notice so given afforded the defendant ample time in which to discover and repair the hole in the pipe which caused the last overflow in question. This brings the case within the rule of liability enunciated in Levine v. and 120 New York State Reporter Baldwin, 87 App. Div. 150, 84 N. Y. Supp. 92, that where a landlord, after notice, fails to remedy defects in parts of the demised premises which remain under his control, he is liable for injuries sustained by the tenant in consequence of his negligence in this respect. The defendant contends that the plaintiff's own negligence was the cause of all damage, if any, sustained by her, because, as claimed, she herself had failed to exercise that degree of care which was incumbent upon her to protect her property from unnecessary injury. The proof, however, shows that when the last overflow occurred the plaintiff did not know water was coming into her apartment until she went to the wardrobe for some clothing, and upon taking out one of the hat boxes she observed a few drops of water upon it, and just as she made such discovery "the water came from above as if you had turned a hydrant on in the street, and dirty water came down with it," and that she then took all articles of wearing apparel from the wardrobe and put them into another room, but before removing them they were already ruined. The defendant furthermore urges that the damages which were awarded are excessive, but this contention is not borne out by the evidence. The plaintiff gave testimony as to the condition and cost of the various articles of wearing apparel claimed to have been ruined by the overflow, as well as the amount paid to repair the furniture damaged thereby. The cost of the former and the amount expended to repair the latter amounted altogether to the sum of $165. The defendant did not offer any proof upon this subject, and we think the award of $115 is warranted by the evidence. We think the judg ment was right, and should be affirmed, with costs. Judgment affirmed, with costs. All concur. JEFFERSON BANK v. GOSSETT et al. (Supreme Court, Appellate Term. February 23, 1904.) 1. GOODS SOLD AND DELIVERED-ACTION FOR PRICE-SUFFICIENCY OF EVIDENCE. Evidence in an action for price of goods sold and delivered held insufficient to show liability for the amount of the recovery. Appeal from Municipal Court, Borough of Manhattan, Third District. Action by the Jefferson Bank against Louis Gossett and another. From a judgment for plaintiff, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Morris E. Gossett, for appellants. Strasbourger, Weil, Eschwege & Schallek, for respondent. FREEDMAN, P. J. The plaintiff in this action sued upon an assigned claim for goods sold and delivered, and recovered a judgment for the sum of $197.62 and costs against the defendants. The defendants set up a counterclaim alleged to consist of a certain promissory note, which was disallowed by the court below, but, as there must be a new trial for the reasons hereinafter stated, the counter claim need not be considered. The answer was a general denial. The defendant Louis Gossett was called as a witness for the plaintiff, and upon his examination testimony was elicited showing that up to January 2, 1903, there was a balance due to plaintiff's assignor for goods sold to this defendant of the sum of $3.27. This witness also testified that "the book" calls for goods sold "from February 17th to April 28th," but such book was not offered in evidence, and in what amounts or of what value such goods were does not appear. One Edward Levy, a son of plaintiff's assignor, was then sworn for the plaintiff. His testimony is to the effect that he had charge of part of the transactions between his father and the defendants, that he saw goods delivered to defendants between January 21 and June 4, 1903, and that he went to defendants to collect bills several times. The record then states that the witness was then shown a bill (what such bill was does not appear), and was asked, "Are those the goods you sold the defendants? Ans. I sold part of them, and my father made the rest." He further testified that he made up the balance on the account, amounting to the sum of $79.03. This was all the testimony given on the part of the plaintiff to establish liability on the part of the defendants. What the correct balance was, or from whom due, or for what goods sold, or their value, was not shown. Not an item of plaintiff's bill of particulars was proven to have been sold or delivered, or the value thereof. The record is barren of the slightest testimony showing or tending to show that defendants were indebted to plaintiff's assignor in the sum of $197.62, for which plaintiff had judgment. The judgment must be reversed. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. EUREKA FIRE HOSE CO. v. REYNOLDS et al. (Supreme Court, Appellate Term. February 23, 1904.) 1. SALES-WARRANTY-CONSTRUCTION. Where plaintiff sold defendant hose under a guaranty that it would pass inspection of the fire department and underwriters, and it appeared that the fire department could not approve the hose, because it failed to conform to certain of its requirements, defendant could not be held liable because the hose had not been officially rejected by the fire department after a test. 2. SAME-ACTION FOR PURCHASE PRICE-Burden of Proof. Where hose was sold with a warranty that it would pass the fire department inspection, if the fire department had nominal requirements, which were not enforced, it was for plaintiff, in an action for the price, to show that fact. Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Eureka Fire Hose Company against James Reynolds and another. From a judgment in favor of plaintiff, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. 86 N.Y.S.-48 |