The opinion
Lotjghran, J.
(dissenting). This was a
res ipsa
case.
(Bordon
v.
Central Hudson Gas & Electric Corp.,
272 N. Y. 596 .) Whether the unexplained break in the city’s pipe was sufficient warrant for a finding of negligence was thus primarily a question of fact.
(Breen
v.
N. Y. C. & H. R. R. R. Co.,
109 N. Y. 297 .) After the jury had found the plaintiff’s damages to be $2,500, the parties stipulated that the trial judge should reserve decision on all motions and thereafter “ announce a decision and make the appropriate direction with the same force and effect as if the jury were present.”
*125
The opinion of the trial judge has been reported ( 174 Misc. Rep. 967 ). He took the ground that the evidence offered by the city actualized the
prima facie
proof of its negligence. The words of the trial judge were these:
“
Defendant’s evidence that it tested the pipes before laying them did not in any way tend to rebut the inference of negligence. On the contrary, by tending to exclude the possibility that the pipes themselves were defective, it tended to sustain the inference that they were negligently laid, for if the pipes themselves were good they certainly would not break in ten years unless they were either improperly laid or were subjected to some exceptional and untoward force or experience, and the latter alternative has not been so much as suggested” (p. 970). The trial judge also stressed the fact that no evidence whatsoever as to the cause of the break in its pipe was offered by the city, though there was every reason to suppose that it had accurate knowledge of that matter. I think this emphasis was as it ought to have been. When one party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference warranted by the evidence should be indulged against- him.
(Wylde
v.
Northern R. R. Co. of N.
J., 53 N. Y. 156 .)
I do not believe the trial judge misconceived the authorities he so carefully collated. If he thought the parties meant to leave the decision of the present issue to him, I am not prepared to say he was wrong in that understanding of the theory of the trial. Even if he directed the verdict against the city in the belief that a verdict the other way would strike every fair mind as indefensible in point of sense, I am still not disposed to take the other side, (Cf.
Hogan
v.
Manhattan Ry. Co.,
149 N. Y. 23 .)
. I vote to affirm the judgments of the courts below.
Finch, Rippey, Lewis, Conway and Desmond, JJ., concur with Lehman, Ch. J.; Loughran, J., dissents in opinion.
Judgment accordingly.