Bertsch v. Unterberg

88 N.Y.S. 983

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 23, 1904
• Status: Published

Opinion

SCOTT, J.

It is not made clear wherein the defendant was negligent. It is claimed on the part of the plaintiff that the defendant should have attached some sort of an automatic cut-off to the pipe which supplied water to the tank, but, although both sides called experts, none of- them suggested that it would have been practicable to do so. The counsel for plaintiff seemed to have in mind the application to the tank of what is known as a “ball and cock attachment,” but every expert testified that such an attachment would be impracticable in a case like the present when the tank was supplied by a pump. One witness said, and his testimony on that point appears reasonable, that such an attachment would have caused the bursting of the pipe. The defendant had no control over the supply of the water to the tank. The evidence showed that the tank was furnished .with an overflow pipe of the usual size, and that it had proved adequate for a number of years, and no evidénce was adduced to show that there was any appliance known to the plumber’s art which would have been effective under the conditions. There having been no negligence shown on defendant’s part, the complaint should have been dismissed.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.