34 N.Y. 527, Moore v. Goedel

Citation:34 N.Y. 527
Party Name:CHAUNCEY W. MOORE and others, v. CHARLES GOEDEL and RICHARD ARNTZ.
Case Date:January 01, 1866
Court:New York Court of Appeals
 
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Page 527

34 N.Y. 527

CHAUNCEY W. MOORE and others,

v.

CHARLES GOEDEL and RICHARD ARNTZ.

New York Court of Appeal

January 1, 1866

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COUNSEL

L. K. Miller, for the plaintiffs.

Andrew Boardman, for the defendants.

WRIGHT, J.

It may be that the exception to the judge's charge is too general to be available; but as this objection is technical, and I am of the opinion that there was no error in the instructions given prejudicial to the plaintiffs, it need not be pressed.

The injury to the plaintiffs resulted from an overflow of the Croton water that had been introduced into the building of which they were occupants of the cellar, basement and first floor. This overflow occurred at night, from water fixtures in the third loft of the building, and flooded to some extent the plaintiffs' premises, injuring their goods. The firm of William D. Cromwell & Co. were the lessees and occupants

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of all the building from the first floor upward. The defendants were in the partial occupation of the third loft, under an agreement with Cromwell & Co., but not in the exclusive possession of any part of it. They had the privilege of storing goods and doing business upon a portion of the third loft, but in entire subordination to the control of Cromwell & Co. They had no right to any key to any part of the premises, and no right of access to any part until after Cromwell & Co. had entered in the morning, and had to leave before Cromwell & Co. left at night. No portion of their occupation was inclosed, and there was unobstructed access on the part of Cromwell & Co. and their employees to every part of the premises occupied by them.

To entitle the plaintiffs to a recovery, it was necessary for them to have shown that the parties sued caused the water to overflow their premises. Had the defendants been in the exclusive possession of the loft in which the closet and washbasin, from which the overflow came, were located, it would, probably, have been sufficient prima facie to have proved the injury and where the overflow occurred. In such a case, where the occupation and right to use the water fixtures is exclusive, the party is responsible for their proper use and proper care, and liability attaches on proof that negligence has occurred...

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