Appellants' points. Appeal by plaintiffs from judgment entered upon the dismissal of the complaint at the trial. The facts sufficiently appear in the opinion. John A. Mapes, attorney and of counsel for appellants, argued :— I. The defendant was guilty of gross and inexcusable negligence in so disarranging the water fixtures as to render wholly nugatory all the safeguards provided to prevent an overflow. The extension tube found upon the pipe on defendant's premises necessarily diverted the flow of the water from its proper channels, and caused it to run upon the floor. Under such circumstances the damage was inevitable. Defendant being in the exclusive occupation of that floor is prima facie chargeable with such negligence. Moore v. Goedel, cited below. II. The ordinary rules applicable to cases of contributory negligence do not apply to the facts of this case. Plaintiffs' omission to turn off the water in no respect contributed to the injury sustained by them. It is true that the overflow would not have occurred if that had been done, but permitting the water to flow through the pipes provided for that purpose, did not cause or contribute to the accident. These pipes were all in good order and thoroughly equipped to prevent such a result. If the pipes and faucet had not been tampered with, the flow of water through them would have been harmless. It might as well be claimed that the owner of the building contributed to the result by putting the pipes in the building, without which no such accident could have happened. The omission of the plaintiffs to turn off the water, and the overt act of the defendant in disarranging the fixtures, were entirely separate and distinct events, and had no connection with each other. The former in no way tended to cause the overflow, the latter directly produced it. As bearing on this, see Haley v. Earle, 30 N. Y. 208; Savage v. Corn Exch. Appellants' points. Ins. Co., 36 Ib. 658; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. (N. S.) 196. III. It was not even negligence on the part of the plaintiffs to permit the water to run through the pipes during the night. These pipes had been placed in the building for the purpose of supplying the upper floors with water. They were in good order, and provided with every safeguard to prevent such an occurrence as happened. As the water only rose to the defendant's floor at night, the fixtures would have been useless, if the tanks were not permitted to fill during the night. As between the plaintiffs and defendants it would have been an unnecessary and ungracious interference with the rights and comfort of the latter to shut off the water when alone it could be available. Not to do so was certainly not negligence, as plaintiffs could not anticipate that the situation, perfectly safe in itself, would be wholly changed by a direct act of inexcusable negligence on the part of defendant. If the tenant of a lower floor in a large city is to be held guilty of negligence for such an omission, then such a tenant is left wholly without remedy for the consequences of the grossest negligence of those above him. The plaintiffs had a right to act upon the presumption that defendant would act in accordance with the rights and duties of both. Newson v. N. Y. Cent. R. R. Co., 29 N. Y. 383; Dobiecki v. Sharp, 88 Ib. 206; Gillespie v. City of Newburgh, 54 Ib. 470. IV. The provision contained in the lease is not available to the defendant as a defense to this action. Defendant was not a party to the lease. With this agreement on the part of Mr. Walker, defendant had nothing to do. He was not a party to it, and it did not even appear that he knew of it. As to this, see Miller v. Woodhead, 104 N. Y. 471, 477; Larmore v. Crown Pt. I. Co., 101 Ib. 391, 394; Burke v. De Castro, 11 Hun 354, 356; Lake Ontario Shore R. R. Co. v. Curtiss, 80 N. Y. 222; Guernsey v. Rogers, 47 Ib. 233; Turk VOL. XXIV.-28 Appellants' points. v. Ridge, 41 Ib. 201; Merrell v. Green, 55 Пb. 270; Vrooman v. Turner, 69 Ib. 280. V. Had the landlord himself been guilty of the overt act of negligence proved in this case, it is more than doubtful if the clause in the lease would have availed him as a defense to an action brought by plaintiffs. VI. The case of Moore v. Goedel, relied upon by defendant is not an authority in support of defendant's position in this action. That case was decided on another principle entirely. Plaintiffs had wholly failed to prove the negligence of defendants. The court held that defendant, being in the common occupation with another firm, of the floor when the difficulty occurred, it could not be presumed that he was at fault in leaving the faucet turned on, while he positively proved that he had nothing to do with it. (The case had gone to the jury.) This disposed of the case. What was further said by the learned judge who wrote the opinion was pure dictum, and may not have been concurred in by his associates. But even as to that, the circumstances were entirely different from those of the case at bar. The promise to shut off the water was made by the tenant below to the co-occupants of that floor, who were also tenants. The damages occurred from simple failure to turn off a faucet, not from an overt act such as complained of here. This case has been repeatedly cited as an authority upon the question on which it was actually decided, but neither the reporter, nor any compiler of decisions nor any court, has ever cited it as an authority for the principle claimed by defendant in this action. On that question the opinion has been universally treated as obiter. VII. The true question involved in this case is this: Which of the two acts or missions was the proximate cause of the injury? Shearman & Red. on Neg., § 33; Addison on Torts, § 34, page 27 of ed. of 1887; Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; Button v. Hudson R. R. Co., 18 N. Y., at p. 258; Nelson v. N. Y. Cent. R. Respondent's points. R. Co., 29 Ib. 383; Austin v. N. J. Steamboat Co., 43 Ib. 82; Kernwacker v. C., C. & C. R. R., 3 Ohio St. 172; Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Richmond v. Sacramento R. R. Co., 18 Cal. 357; Stucke v. Milwaukie R. R. Co., 9 Wis. 202; Ind. R. R. Co. v. Cauldwell, 9 Ind. 397; State v. Manchester R. R. Co., 52 N. H. 528, pp. 553 to 556; Green v. Erie R. Co., 11 Hun 333; Kenyon v. N. Y. Cent. R. R. Co., 5 Ib. 479; affirmed 76 N. Y. 607. VIII. In any view of the question above discussed the case should have been submitted to the jury. If there was any doubt as to whether or not the plaintiffs' omission to turn off the water was negligence; whether or not it contributed to the injury; whether it or the defendant's negligence was the proximate cause of the injury, or whether or not the defendant's negligence was so gross as to be equivalent to willful injury. Such doubts should have been solved by the jury. It was their province and not that of the court to decide such questions. It is only where the proofs conclusively show that the plaintiff has been guilty of negligence contributing directly to the injury suffered by him that the court is warranted in dismissing a complaint of this character. The exceptions taken were well founded and should be sustained, and a new trial ordered. William H. Townley, attorney and of counsel for respondent, argued I. It is well settled that the burden of proof was on the plaintiffs to show that they were free from any negligence which contributed to the injury. Sherman & Redfield on Negligence, § 34. The injury must be solely caused by the negligence of the defendants. It is not enough that it should be essentially so caused. Grippen v. N. Y. Cent. R. R. Co., 40 N. Y. 34; see p. 51. A party claiming to have been injured by the negligence of another must fail in his action unless it appear that he was free from any negligence without Opinion of the Court, by FREEDMAN, J. which the injury would not have happened. The greatest negligence on the part of the defendant will not cure the defect of the least negligence contributing to the injury on the plaintiffs' part. Cases of negligence form no exception to the rule that it is the judge's duty to nonsuit where a verdict for the plaintiff would be clearly against the weight of evidence. Wilds v. Hudson River R. R. Co., 24 N. Y. 430. II. Moore v. Goedel, 34 N. Y. 527, affirming 7 Bos. 591, is a case in point on the question involved here, and, it is respectfully submitted, is conclusive against the plaintiffs. III. This is not a case of the defendants seeking to gain the benefit of a contract to which they are strangers. 101 N. Y. 371, and other cases cited by plaintiffs' counsel at the trial, have no application. We are not suing on a contract made between others. We are defending against a claim for damages based upon the affirmation, which must be proved, that the plaintiffs themselves were not at fault in the matter. The facts disclose that a neglect of duty on the plaintiffs' part contributed to the accident. Therefore, there cannot be a recovery. BY THE COURT.-FREEDMAN, J.-The plaintiffs sued to recover damages for injury to a stock of paper on their premises, Nos. 16 and 18 Reade street, in the city of New York, which damages they claim were caused by the negligence of the defendant in permitting an overflow of water in a certain closet on the second floor of said buildings. The defendant at the time in question occupied the whole of said second floor as a tenant, and the plaintiffs, as tenants, occupied the first or ground floor and the basement and sub-basement. At the trial the evidence, on the part of the plaintiffs. established the following facts, viz.: On the morning of April 7, 1887, plaintiffs' premises were found wet and flooded. The ceiling over the ground floor was dripping |