Opinion
June 10, 1957
In an action to recover damages for injuries to a house and personal property, sustained as the result of a break in a water meter, the appeal is from a judgment of the County Court, Rockland County, entered on a verdict of a jury in favor of respondent. The meter, owned by appellant, was installed by it in respondent's premises more than a year and a half before the accident. There was no proof as to the cause of the break in the meter. Over appellant's objection, the case was submitted to the jury under a charge that permitted them to apply the res ipsa loquitur doctrine and find appellant negligent if they found that the meter was in its exclusive control. Judgment reversed on the law and the facts, with costs, and complaint dismissed. In our opinion, there was a total absence of proof to sustain the finding, implicit in the verdict under the court's charge, that appellant was in exclusive control of the water meter. Under such circumstances, the principle of res ipsa loquitur may not be applied. (Cf. Galbraith v. Busch, 267 N.Y. 230, 234; Mercatante v. City of New York, 286 App. Div. 265, 267-268; Stern v. Zalaznick, 148 N.Y.S.2d 493.) Since that doctrine is inapplicable and since there is no other evidence establishing that the injuries to respondent's property were due to appellant's negligence, there is no proof to sustain the verdict. (Cf. Merry Maid Mfg. Co. v. Lucy Lane Frock, 231 App. Div. 639. ) Nolan P.J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.