Denton v. Kernochan
New York Court of Common Pleas
Appeal from third district court. Action by Frederick S. Denton against J. Frederick Kernochan, to recover for damage to plaintiff’s goods by an overflow of water. The wrong imputed to defendant is that he “negligently, carelessly, and heedlessly opened and left open a certain faucet appurtenant to his premises, whereby the water flowed through the same into the apartments of the defendant, ” and occasioned the injury complained of.
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Appeal from third district court. Action by Frederick S. Denton against J. Frederick Kernochan, to recover for damage to plaintiff’s goods by an overflow of water. The wrong imputed to defendant is that he “negligently, carelessly, and heedlessly opened and left open a certain faucet appurtenant to his premises, whereby the water flowed through the same into the apartments of the defendant, ” and occasioned the injury complained of. One Donnell, tenant of the fourth and fifth stories of the building, sold defendant a lot of merchandise there deposited, and defendant agreed to pay the rent…
1Opinion of the CourtPryor, J.
Assuming, what, however, is questionable upon the facts, that defendant was technically tenant and occupant of the premises, we are nevertheless of the opinion that the evidence is insufficient to fix him with liability for plaintiff’s injury. By the form of the complaint, and it could not be otherwise, negligence is the gist of action; and to recover it is incumbent on the plaintiff to show that the negligence of the defendant was the occasion of his injury. The judgments of courts are founded upon proofs, not upon surmise or conjectures; and, to overcome the legal presumption that every man…
2Cases cited3 opinions
- Moore v. . GoedelNew York Court of Appeals · 1866
- Harris v. . PerryNew York Court of Appeals · 1882
- Donnelly v. JenkinsNew York Court of Common Pleas · 1880