216 A.D. 468 | N.Y. App. Div. | 1926
The plaintiff corporation operates a wholesale candy store at 685 East Tremont avmue, in the borough of The Bronx. On the early morning of March 17, 1921, by reason of a break in the twelve-inch water main maintained by the defendant on East Tremont avenue running along beneath the pavement in front of the plaintiff’s establishment, the basement of the store where the plaintiff was carrying on business was flooded and a quantity of candies, cocoa, ice cream cones and other material became water-soaked so as to be rendered worthless, and resulted in damage to the plaintiff, for which it brought the present action to recover. It is the claim of the plaintiff that the defendant was negligent in faffing to exercise proper inspection and to maintain the water main in a reasonably safe condition. The plaintiff also claimed that the evidence showed that the defendant had notice, either actual or constructive, of the defective condition of its water main, and that the defendant neglected to repair the same before the break occurred, resulting in damage to the plaintiff. It is claimed by the plaintiff that certain depressions in the pavement in front of the plaintiff’s establishment and in that vicinity and the presence of puddles of water on the roadway in said depressions and the wetness of the pavement on that side of the street was such as to indicate to the defendant that there was a leak in its water main and to call upon the defendant to repair the same. Evidence was given on the part of the plaintiff to the effect that for several weeks prior to the breaking of the main there were depressions in the pavement which became filled with water; that
We are, however, of the opinion that, because of errors occurring upon the trial, the judgment appealed from must be reversed and a new trial granted. One of the plaintiff’s main witnesses was Daniel J. Lippmann, a tobacco leaf dealer and manufacturer of cigars, whose place of business was on East Tremont avenue next adjacent to plaintiff’s place of business on the east. Lippmann testified that he used to go to his place of business between seven and eight o’clock in the morning, and that he noticed early in February that the north side of the street would be wet and the other side would be perfectly dry; that he had seen that there were depressions in some parts of the pavement between 681 East Tremont avenue as far down as the corner of Crotona avenue, and that in these depressions there was dampness and water; that he first noticed these conditions in the early part of February and in March; that at first he paid no attention to it, but on one occasion he spoke to a policeman about it, saying to him: “ Look how this part is wet and the other part is dry; ” that the day was dry when he called the officer’s attention to it, and it was not raining; that he made no complaint, but merely spoke to the officer, who was standing in front of his place of business. Lippmann
Evidence was also given of a break in the same main, which occurred in January, 1921, some distance away from the break in front of the plaintiff’s premises. Subsequently this testimony was stricken out by the trial court because of plaintiff’s failure to show that the method of construction adopted by the city of the laying of the water pipes was defective. There was no attempt on the part of the plaintiff to show that the break in January was from the same or a similar cause as that from which the plaintiff’s damage resulted. We think the evidence as to the January break was improperly received, and, although later stricken out by the trial court, was, nevertheless, prejudicial to the defendant. The testimony as to the prior break in the same main would undoubtedly influence the jury, and we are unable to say that the error was
We are of the opinion that because of the errors mentioned, which we regard as highly prejudicial to the rights of the appellant, the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, P. J., Finch and Martin, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.