Opinion
November 30, 1942.
Action to recover damages for personal injuries sustained by plaintiff when an oil burner in the basement of premises, of which plaintiff's employer was a tenant, exploded. Defendant Estate of Josiah T. Smith, Inc., is the owner of the building, and defendant Brooklyn Cornell Utilities, Inc., serviced the oil burner. Judgment in favor of plaintiff reversed on the law and the facts, with costs, and the complaint dismissed, on the law, with costs. In our opinion plaintiff failed to establish any actionable negligence on the part of either defendant. Defendant Estate of Josiah T. Smith, Inc., was a lessor out of possession at the time of the accident and, therefore, its undertaking to make repairs to the oil burner created no liability in tort in favor of any person who might be injured by its breach. ( Cullings v. Goetz, 256 N.Y. 287.) As to defendant Brooklyn Cornell Utilities, Inc., all the evidence shows is that the explosion may have occurred from any one of many causes, including, perhaps, negligence on the part of this defendant in making repairs to the oil burner. Where the precise cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover and the complaint should be dismissed. ( White v. Lehigh Valley R.R. Co., 220 N.Y. 131, 135.) Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.