(dissenting). The water which did the injury was flowing down through the ceiling above plaintiff’s store from a place admitted by stipulation to be within defendant’s sole and exclusive possession and control. The part from which the water was coming was one foot from the northerly wall of the store and sixteen feet *286from, the front of the store, and not, therefore, near the end or southerly wall of the building. The water was of a brownish color. There is no evidence from which any possible inference of negligence could arise on plaintiff’s part. Only by committing a trespass and breaking into the upper part of the building, in defendant’s exclusive possession, could plaintiff ascertain the precise conditions permitting large quantities of water to damage plaintiff’s property. Except to call a witness who said the water pipes above the store had been disconnected ten months before, defendant adduced no evidence whatever. This testimony adduced by defendant aided plaintiff’s case since in the absence of any other proof of inspection, it was at the very least a jury question whether defendant exercised reasonable care in not inspecting an empty loft for ten months. The Municipal Court and the Appellate Term correctly determined that res ipsa loquitur applied,
Where the thing causing an injury is under defendant’s control and the injury is such as does not happen in the ordinary course when reasonable care is used, it affords in the absence of explanation by defendant sufficient evidence that the accident arose from want of care on his part. (Grifen v. Manice, 166 N. Y. 188.) Here the injury happened without any voluntary action at the time by the party injured. Inspection and user at the time were in defendant’s exclusive control. No injury was to be expected from the place above the ceiling of plaintiff’s store unless from careless maintenance, inspection or user, and evidence was accessible to defendant but inaccessible to plaintiff. In that state of facts res ipsa loquitur should apply. (9 Wigmore on Evidence [3d ed. 1940], § 2509, p. 377 et seq.) By proper inspection defendant was in a position to ascertain whether the plumbing or other structural requirements necessary to prevent water leaking in great quantities through the ceiling into plaintiff’s store were being maintained in good condition. On this record there was no inspection shown for ten months prior to the injury. Plaintiff showed enough to require defendant to adduce facts indicating that the injury occurred through causes for which defendant was not responsible.
In Moore v. Goedel (34 N. Y. 527), an action brought to recover damages for an overflow of water on the premises in a place occupied in common by defendants and third persons, it was held that had the defendants been in exclusive possession of the loft whence the overflow came “ it would probably have been sufficient prima facie to have proved the injury and where the overflow occurred.” The Appellate Term of this department has applied that ruling in a long line of cases where plaintiff showed defendant was in exclusive possession of a loft whence an overflow of water came. (Greco v. *287Bernheimer, 17 Misc. 592 [opinion by McAdam, J.]; Simon-Reigel Cigar Co. v. Gordon-Burnham Battery Co., 20 id. 598 [McAdam, Daly and Bischoff, JJ.]; Kahn v. Burette, 42 id. 541; Rothblatt v. Solomon, 59 id. 519.)
In Griffen v. Manice (supra) the Court of Appeals said “ that it is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence,” and held that where the defendant has knowledge of a fact but slight evidence is required to shift on him the burden of explanation, and that these rules are not “ confined to any particular class of cases, but they are general rules of evidence applicable wherever issues of fact are to be determined either in civil or criminal actions.” That doctrine was reiterated by the Court of Appeals in Goldstein v. Pullman Co. (220 N. Y. 549, 554).
The conclusion that res ipsa loquitur applies is also supported by reason and justice as well as authority, and by the concept of a lawsuit as an honest effort to ascertain truth rather than a process of withholding ascertainable facts so as to prevent the full revelation of truth and the inferences of liability or non-liability that flow therefrom. Indeed the present case illustrates how the ancient maxim res ipsa loquitur can serve the administration of justice. When plaintiff’s damage and freedom from contributory negligence are admitted, when the source of the injury is in defendant’s exclusive control, the injury unlikely to happen unless defendant was negligent, and complete inspection is available to defendant but not to plaintiff, there never could be any recovery, however great the damage, if plaintiff honestly restricted himself to facts accessible to him and the defendant remained mute, unless the doctrine res ipsa loquitur was held applicable.
Accordingly, I dissent and vote to affirm.
Callahan, J., concurs.
Determination of the Appellate Term and judgment of the Municipal Court reversed, and the complaint dismissed, with costs to the defendant in all courts.