Opinion
June 15, 1925.
Abraham H. Sarasohn, for the appellant.
Michael Popper, for the respondents.
This is an action for damages to the merchandise of the plaintiffs caused by leakage of water from the premises of the defendant who occupied the loft above the plaintiffs. The leak in question resulted from the bursting of a water pipe in the ladies' retiring room of defendant's premises.
The pipe which burst was part of the general plumbing system connected with the lavatory tank. The duty of keeping the plumbing in defendant's loft in repair was upon the landlord. The testimony showed that the pipes were twelve to fifteen years old, and that there had been frequent leaks from the pipes under control of the landlord at various other times. The plaintiffs allege that the break in the pipe was due to freezing caused by the fact that the defendant had left the window of the room open on Saturday night and between that time and Monday morning the temperature outside was considerably below the freezing point as a result of which the pipe had frozen, causing the break. The defendant denies that he left the window open. The evidence shows that when the plaintiffs went up to the premises on their arrival on Monday they found a workman repairing the pipe and the window open about four or six inches. The pipe itself was twenty-eight inches from the window. The only evidence introduced by the plaintiffs to prove that the bursting of the pipe was due to freezing was the testimony of their expert, a plumbing and heating contractor who had never seen the premises or the pipe in question, and who answered a hypothetical question that under certain conditions the opening of the window would cause the pipe to freeze and the consequent thawing would cause the pipe to burst. The defendant's expert, a licensed plumber, who examined the premises some time after the damage, testified that the pipe was fifteen years old; that it was corroded and the leak was caused by the break due to the natural deterioration and weakness of the pipe itself; and he grounded his conclusion upon the opinion that the water in the lavatory tank, which is stationary, and about five inches from the alleged open window, did not freeze. The answer of plaintiff's expert to the hypothetical question is insufficient to establish the fact that the damage was caused by freezing because that question failed to make any mention of the temperature in the room. Under questioning of the court, the witness admitted that if the room were heated, the freezing of the pipe might be prevented. There is nothing in the record, however, to show what the temperature of the room was.
Plaintiffs have, therefore, failed to show that the open window was the only possible cause of the break, in view of the evidence of the age and corrosion of the pipe. The mere possibility or even probability that the defendant's act or omission may have been the proximate cause of the damage complained of is not sufficient to fasten liability upon him.
"The rule is well settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible." ( Ruback v. McCleary, Wallin Crouse, 220 N.Y. 188, 195.)
In view of the conclusion reached, it is unnecessary to discuss the questions presented by the record whether the plaintiffs' expert witness was shown to be properly qualified as such, and whether the damages claimed were sufficiently proved.
The judgment appealed from should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, BIJUR, McGOLDRICK and LEVY, JJ.