265 A.D. 886 | N.Y. App. Div. | 1942
In our opinion plaintiff failed to establish any actionable negligence on the part of either defendant. Defendant Estate of Josiah T. Smith, Inc., was a lessor out of possession at the time of the accident and, therefore, its undertaking to make ¡repairs to the- oil burner created no liability in tort in favor of any person who might be injured by its breach. (Cuttings v. Goetz, 256 N. Y. 287.) As to defendant Brooklyn Cornell Utilities, Inc., all the evidence shows is that the explosion may have occurred from any one of many causes, including, perhaps, negligence on the part of this defendant in making repairs to the oil burner. Where the precise cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover and the complaint should be dismissed. , (White v. Lehigh Valley R. R. Co., 220 N. Y. 131, 135.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.