Eugene C. Lewis Company, Respondent, v. Metropolitan Realty Company, Appellant

Eugene C. Lewis Company, Respondent, v. Metropolitan Realty Company, Appellant. Second Department, April 20, 1906. Negligence — injury to property by overflow of water tank on leased premises — covenant exempting lessor from damage to lessee’s property does not include injury by negligence — res ipsa loquitur. "Wken the chattels of a tenant have been injured by the overflow of a water tank on the floor above, a covenant exempting the lessor from liability “for any damage or injury which may be caused by any leakage of gas, steam or water pipes, or leakage or ’overflow of any kind whatsoever,” does not in terms exempt him from liability for negligence, nor is such exemption implied. A leakage around the edges of a manhole of a water tank, appearing immediately after the hole has been opened" to clean the tank, is evidence per se that the cover was negligently replaced under the doctrine of res ipsa loquitur. The case on appeal should be stripped of all discussion unless containing an admission or excepted to. • Appeal by the defendant, the Metropolitan .Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 11th- day of March, 1905, upon the verdict of a jury for $1,138.25, and also from an order entered in said clerk’s office On the. 14th day of March, 1905, denying the defendant’s motion for a" nejv trial made upon the minutes. ■ Action for damages to chattels by negligence. The plaintiff was tenant of one floor of a building of the defendant. The defendant supplied water to the whole building by means of water tanks, one ■of which was on the floor above the plaintiff. The defendant had it cleaned out on Sunday. The cleaners had to enter it through a manhole on top of .it. This hole was closed by a cover with a flange, which fitted a .flange in the rim of the manhole, and the interstice was made tight by a rubber washer or gasket which had to be put in. On Monday morning, when the pump below was started to, force water into this tank until it was full, and thence ■ from this tank through, a connecting pipe up to a tank above, the water leaked through the seams of these flanges, and overflowed down into the plaintiff’s floor and injured its chattels, and the. chattels of several other persons, consisting of printed matter, sent by them to the plaintiff to be bound, it being-a bookbinder. They assigned their claims for damagesyo the plaintiff, -and this' action _ is for the damage to the plaintiff and also upon the said other claims. The lease of the defendant to the plaintiff contained theffollowing: “ The lessor shall not be liable for any damage or injtiry which may be caused by any leakage of gas, steam or water pipes, or leakage or overflow of any. kind whatsoever.” The trial judge ruled that this prevented the plaintiff recovering . for its own damage, and allowed.a-recovery on the assigned claims only. Charles J. Hardy, for the appellant. Willard N. Baylis, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: It is claimed that the exemption clause in the léase for damage by leakage prevents a recovéry for the damage to the plaintiff’s assignors as well as for the damage- to the 'plaintiff; It is enough to say that such exemption clause did not in terms exempt the defendant for liability to the plaintiff for acts of negligence by it, and no such exemption can be implied. The recovery here is for the affirmative act of negligence in putting on the manhole cover defectively (Levin v. Habicht, 45 Misc. Rep. 381; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48). The fact that the tank had been watertight and that the leak around the edges of the manhole immediately showed itself after the taking of it off to clean the tank and the replacing of it by the defendant, was in itself evidence that the cover had been negligently replaced, under the maxim that the thing speaks for itself, and in addition there was evidence that the rubber gasket or washer had not been properly put in. The reading of this case is rendered burdensome by much colloquy between counsel and the court, and discussion of counsel, which it should not contain at all. A case on appeal should be stripped of all such matter, unless it be excepted to, or contain an admission, or the like. The judgment and order should be affirmed. Woodward, Jenks and Rich, JJ., concurred; Hirschberg, P. J., concurred in result. Judgment and order unanimously affirmed, with costs.