Clarke v. Anderson

14 Daly 464, 15 N.Y. St. Rep. 363

• Court: New York Court of Common Pleas
• Decided: April 2, 1888
• Status: Published

Opinion

J. F. Daly, J. —

It is claimed by the plaintiffs that the evidence shows that the overflow of water, and damage, was caused by the failure of defendants to turn the water off from their tank by using the stop-cock on their premises, and also by negligently suffering the drip-basin beneath the tell-tale pipe that led from the tank to become clogged up so that the overflow from the tank could not be carried off. There was no evidence that the stop-cock had ever been used to cut off the water from the tank, or that defendants,, knew that it was to be used to cut off the water at night, and prevent its rising and overflowing, or that they knew that the water would by its own pressure rise, fill the tank, and overflow. The plaintiffs’ experts, plumbers, say that the pressure of the water was greater on Sundays than on Aveek days, and greater at night than in the daytime; but there was no evidence that the defendants knew this fact, or that the water had ever risen so high as to fill the tank, or overflow, before this particular damage occurred; .nor is there anything in. the case to prove that defendants had reason to know or to apprehend any such rising of the Avater. If they did not knoAv it, and had no reason to expect it, Avhere was the negligence in failing to turn the water off, or to keep the drip-basin open ? They knew that the drip-basin was used to carry off the water that overfloAved through the tell-tale pipe from the tank; but the object of the tell-tale was to notify the person pumping Avater into the tank that it was full, and the basin, even if somewhat clogged, would suffice to carry off the overflow from pumping. There Avas nothing to Avarn them that there would be an overflow from the tank except by pumping Avater into it. They filled the tank by a hand-pump on their premises; and the fact that the pump had to be used to fill it was some notice that the tank could not be filled in any other way. There was no exndence of negligence to go to a jury.

The plaintiffs attempted to introduce evidence of declarations made by a clerk of defendants, one Hines, that he usually turned off the water, but must have forgotten it on that Saturday night. These admissions, it is alleged, were made the morning after the damage, to an employe of plaintiffs, and in reply to a question by the latter. It needs no argument to show that they were inadmissible, being mere hearsay. It is suggested that they were “ part of the res gestee; ” but Hines was not, at the time of making the admissions, engaged in any business of his employers with which such admissions were connected, and the declarations related wholly to past events.

The judgment and order should be affirmed, with costs.

Van Hoesen, J., concurred.

Judgment and order affirmed, with costs.