Assuming, what, however, is questionable upon the facts, that defendant was technically tenant and occupant of the premises, we are nevertheless of the opinion that the evidence is insufficient to fix him with liability for plaintiff’s injury. By the form of the complaint, and it could not be otherwise, negligence is the gist of action; and to recover it is incumbent on the plaintiff to show that the negligence of the defendant was the occasion of his injury. The judgments of courts are founded upon proofs, not upon surmise or conjectures; and, to overcome the legal presumption that every man fulfills his obligations, evidence must be produced of the fact of a breach of duty. True it is that one must so use his own as not to injure another; but still it remains to be shown that it was his act that caused the injury. In the case before us no evidence whatever was given as to how the faucet came to be open, or by whom it was opened, or how long it had been opened; all that appears being that a policeman found the water running and the sink overflowed. If the defendant were the only occupant of the rooms, or if he alone had access to the faucet, then possibly a presumption might arise that it was by his act the water was set running. But as other persons occupied the building, and as it is not apparent that they did not have access to the faucet, there is no warrant in the evidence to impute to defendant responsibility for the accident. In Donnelly v. Jenkins, 9 Daly, 41, the several occupants of a house were sought to be held liable for an inj ury from a fall through an elevator hatchway; but a verdict for the plaintiff was set aside at general term, the court saying, (page 44:) “If either of these defendants used the elevator exclusively, then, if the door was left open, one might legitimately infer that it was left open by such defendant; but, in the absence of all proof upon the subject, how can we say that this or that defendant was was guilty of the negligence? There was therefore no evidence showing the defendants guilty of the negligence, and the judgment must be reversed.” Sufficiently in point is Moore v. Goedel, 34 N. Y. 527, an action for damages from an overflow of premises occasioned by leaving the faucet open, where it *890was said: “The premises being occupied in common, no presumption arises that the overflow was occasioned by the neglect of the defendants.” Robbins v. Mount, 4 Rob. (N. Y.) 553; Clarke v. Anderson, 2 City Ct. R. 115; Ross v. Fedden, L. R. 7 Q. B. 661; Harris v. Perry, 23 Hun, 244, 89 N. Y. 308. Judgment reversed, and new trial, costs to abide the event.