It may have been sufficient to make out a prima facie case for the plaintiffs to show that the overflow which occasioned the damage came from the defendants! premises through a faucet which had been left open without evidence tending to show that this condition had been produced by the defendants themselves or someone in their employ. Moore v. Goedel, 34 N. Y. 527; Greco v. Bernheimer, 17 Misc. Rep. 592; Simon-Riegel Cigar Co. v. Gordon B. Battery Co., 20 id. 598. Assuming that such is the law, the rule still applies which requires the plaintiff to make out his case by a preponderance of evidence, and the burden of so doing continues with him to the close of the whole case. In other ¡words, the presumption of fact upon which, in certain cases, the plaintiff may rely in the first instance in support of his case are rebuttable, and when the defendant has offered proof which dispels the presumptions, the plaintiff must resume the burden of establishing his cause of action by additional evidence.
In the case at bar, the evidence was purely circumstantial and inconclusive. The trial justice might well have come to the conclusion that it was so evenly balanced that there was no preponderance in plaintiffs’ favor, in which event, of course, it was his duty to dismiss the complaint. It is contended, however, that the defendants as a matter of law were guilty of negligence because they did not inspect the faucet from whichl the water appears- to have come, before leaving their premises on the night prior to the accident, and reference is made to the case of Simon-Riegel Cigar Co. v. Gordon B. Battery Co., supra, in support of this claim. That case, however, is quite different in its facts from the one under consideration. It may be that there is such a duty which the law recognizes where the faucet is in daily use, as it was in 'that case, but in the case at bar, it was shown that the bath-room where the *662faucet was, with its present equipment, was in the building when the defendants took their lease of the premises, that it was not adapted to the uses for which the premises were occupied, and that it had never been used for the purpose of drawing water by either the defendants or their employees. It can hardly be said, therefore, under these circumstances and as a matter of law, that any duty rested upon the defendants óf malting a nightly inspection of the plumbing of this place.
. The case was tried before the justice below without 'a jury, and it was for him to determine whether, under all the circumstances of the case, the defendants had acted in the matter with ordinary prudence and care. How the faucet came to be open in no way appears. It was claimed by the plaintiffs that-it must have been the act" of the defendants or their servants. On the other hand, the defendants insisted that it must have been turned on by a plumber who had been employed by their landlord to make, some changes in the plumbing elsewhere in the buildings .and who in making some investigations had gone into the bath-room to look at the plumbing there the day before the accident took place. It was for the trial justice to draw such inferences from the facts proven as in Iiis judgment they seemed tó warrant, ,and the burden rested upon the plaintiffs of establishing -their cause ®f action to his satisfaction by a fair preponderance of proof. As we have already said, he'might well, however^ have determined upon the facts disclosed by the' record that the evidence ¡was .'evenly balanced, and that the plaintiffs had not sustained the burden of proof which the law cast upon' them. Doubtless that was the reason why he dismissed the complaint; It is well settled that this court will not interfere with the action of the court below with respect to the weight of evidence, except to prevent palpable injustice in cases where his determination in that regard is obviously ¡wrong.
The judgment should, therefore, be affirmed.
Judgment affirmed, with costs.