Opinion
November 13, 1979
In an action to foreclose liens on certain premises, the City of New York appeals from a judgment of the Supreme Court, Kings County, dated May 24, 1978, which, after a nonjury trial, dismissed the action. Judgment affirmed, without costs or disbursements. In this action, the City of New York sought to foreclose against the premises of 215 Van Dyke Street, Brooklyn, because of the owners' refusal to pay a water bill amounting to $20,116.95, for water allegedly used in the period from November 15, 1971 through January 11, 1972. Subsequent investigation revealed that the water meter was defective and all parts of the meter were replaced in April, 1972. At the trial, the city introduced evidence that water was wasted through a subterranean leak, and claimed that the owners were liable for that water (cf. Emerson Plastronics v City of New York, 82 Misc.2d 770). However, we need not reach the question of whether an owner is liable for water wasted through an undetected subterranean leak in pipes within his dominion and control. There is no credible evidence in the record as to the location of the leak nor the amount of water wasted. The fact that the meter was "galloping" was not credible evidence, as it was established that the meter was defective. Therefore, the trial court properly determined that the owners were not liable for the charges set forth in the bill. Hopkins, J.P., Damiani, Titone and Mangano, JJ., concur.