Eugene C. Lewis Co. v. Metropolitan Realty Co.

98 N.Y.S. 391 | N.Y. App. Div. | 1906

Gaynor, J.:

It is claimed that the exemption clause in the léase for damage by leakage prevents a recovéry for the damage to the plaintiff’s assignors as well as for the damage- to the 'plaintiff; It is enough to say that such exemption clause did not in terms exempt the defendant for liability to the plaintiff for acts of negligence by it, and no such exemption can be implied. The recovery here is for the affirmative act of negligence in putting on the manhole cover defectively (Levin v. Habicht, 45 Misc. Rep. 381; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48).

The fact that the tank had been watertight and that the leak around the edges of the manhole immediately showed itself after the taking of it off to clean the tank and the replacing of it by the defendant, was in itself evidence that the cover had been negligently replaced, under the maxim that the thing speaks for itself, and in addition there was evidence that the rubber gasket or washer had not been properly put in.

The reading of this case is rendered burdensome by much colloquy between counsel and the court, and discussion of counsel, which it should not contain at all. A case on appeal should be stripped of all such matter, unless it be excepted to, or contain an admission, or the like.

The judgment and order should be affirmed.

Woodward, Jenks and Rich, JJ., concurred; Hirschberg, P. J., concurred in result.

Judgment and order unanimously affirmed, with costs.