Radice v. Einsidler

Appellate Terms of the Supreme Court of New York

Radice v. Einsidler

125 Misc. 815, 211 N.Y.S. 570, 1924 N.Y. Misc. LEXIS 1135

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1924

StatusPublished

This text of 125 Misc. 815 (Radice v. Einsidler) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Radice v. Einsidler, 125 Misc. 815, 211 N.Y.S. 570, 1924 N.Y. Misc. LEXIS 1135 (N.Y. Ct. App. 1924).

Pincite

Opinion

Per Curiam:

Judgment unanimously reversed upon the law, with thirty dollars costs to appellant, and complaint dismissed, with appropriate costs in the court below.

The proof did not establish that the accident was caused by the negligence of the defendant. There was no defect in the [816]*816coupling that broke. Nor is there any proof that the radiator and coupling were improperly placed. The testimony of the expert, that the accident would not have happened if things were in proper place, is not proof of an improper placement. There being no proof of a defective condition or an improper placement, there was nothing that an inspection would have disclosed. Concededly, no complaint had ever been made regarding the radiator or its connections. Though the accident was not one of frequent occurrence, that would not necessarily defeat recovery. {Quill v. Empire State Telephone & Telegraph Co., 92 Hun, 539.) But the proof also showed that it was one that was not to be expected to happen. There was no basis for holding the defendant liable for turning on the heat. About two hours or more after the heat was turned on, defendant's janitor heard it escaping in plaintiff's apartment. He did not then attempt to cut off the heat but waited until the usual time, about eight o’clock. This failure, however, is not shown to have been the cause of the damage. The record does not show whether the furnishings were damaged before or after the janitor knew that the steam was escaping.

Present: Cropsey, Lazansky and MacCrate, JJ.

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Per Curiam:

Judgment unanimously reversed upon the law, with thirty dollars costs to appellant, and complaint dismissed, with appropriate costs in the court below.

The proof did not establish that the accident was caused by the negligence of the defendant. There was no defect in the [816]*816coupling that broke. Nor is there any proof that the radiator and coupling were improperly placed. The testimony of the expert, that the accident would not have happened if things were in proper place, is not proof of an improper placement. There being no proof of a defective condition or an improper placement, there was nothing that an inspection would have disclosed. Concededly, no complaint had ever been made regarding the radiator or its connections. Though the accident was not one of frequent occurrence, that would not necessarily defeat recovery. {Quill v. Empire State Telephone & Telegraph Co., 92 Hun, 539.) But the proof also showed that it was one that was not to be expected to happen. There was no basis for holding the defendant liable for turning on the heat. About two hours or more after the heat was turned on, defendant's janitor heard it escaping in plaintiff's apartment. He did not then attempt to cut off the heat but waited until the usual time, about eight o’clock. This failure, however, is not shown to have been the cause of the damage. The record does not show whether the furnishings were damaged before or after the janitor knew that the steam was escaping.

Present: Cropsey, Lazansky and MacCrate, JJ.

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Bluebook (online)

125 Misc. 815, 211 N.Y.S. 570, 1924 N.Y. Misc. LEXIS 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radice-v-einsidler-nyappterm-1924.