from the date hereof, in default whereof, at the expiration of fifteen days and upon praecipe of defendant, the Prothonotary shall enter judgment for the defendant.

AMBLER v. LYNN.

Practice New Trial-Motion-Laches-Evidence-Review. A rule to show cause why a verdict should not be set aside will be treated as a motion for a new trial, the petition alleging errors in the trial.

Under the rules of court, a motion for a new trial has to be made within five days after verdict, and where no reasons are alleged in the petition nor shown by depositions or otherwise for a delay of two and a half months, and there is no allegation of fraud, accident or mistake or of after-discovered testimony, a new trial will not be granted.

Where certain books or documents were offered in evidence as exhibits, but were not transcribed with the testimony, nor copies thereof produced to the reviewing judge, the trial judge having died, there can be no proper review of an alleged error as to that matter.

In the Court of Common Pleas of Lehigh County. No. 155 October term, 1919. Charles A. Ambler, Insurance Commissioner of Pennsylvania, Statutory Liquidator, by Thomas B. Donaldson, special Deputy Insurance Commissioner, his agent in the liquidation of the Dissolved Manufacturers and Merchants Mutual Fire Insurance Company, v. J. Lynn. Appeal from justice. Rule to show cause why verdict should not be set aside. Rule discharged.

R. G. Bushong and Francis J. Gildner, for Plaintiff.
William H. Schneller, for Defendant.

Reno, J., January 2, 1922. Upon petition to the late Judge, Hon. Milton C. Henninger, plaintiff was granted a rule upon defendant commanding him to show cause why the verdict rendered on April 25, 1921, should not be set aside. The defendant having answered the cause comes before us upon that petition and answer.

The case was tried before the late Judge Henninger, who, at the conclusion of the plaintiff's case, directed a verdict for defendant. This direction was based upon the failure of plaintiff to identify or authenticate properly certain books and papers offered at the trial and alleged to be public documents in that they were in the custody of the Insurance Commissioner.

If the rule is made absolute and the verdict set aside a new trial must follow. The petition is, therefore, equivalent to a motion for a new trial. Indeed, except that the prayer is for the setting aside of a verdict, the petition follows very closely the usual and standard form of a motion for a new trial. It alleges errors committed by the trial judge in the course of the trial, all of them being rulings of the judge upon questions of reception of evidence. We are constrained, therefore, to treat the petition as an application for a new trial. Our rules of court provide that

"Motions for new trial shall be made within five days after the verdict. Where the verdict has been rendered within the last five days of the court, the motion for a new trial shall be made before the final adjournment." (Rule XXVII; Section 1.)

The verdict was rendered April 25, 1921; the petition was filed July 12, 1921; two and a half months elapsed between verdict and petition. No reasons are alleged in the petition and no reasons are shown by deposition or otherwise for the long delay. The reasons set forth in the petition could have been alleged within five days after the trial quite as readily as they were after two and a half months had passed. Certainly a motion for a new trial could have been filed within the five day period even if the reasons could not then have been alleged; for it has always been the practice of this court to permit motions to be filed without the allegation of reasons, leave being granted to file reasons at a later date. There is no allegation of fraud, accident or mistake by the parties, nor of after discovered testimony, nor of anything that should move us to disregard our rules of court. If the rule quoted is to have any value it must be enforced according to its tenor which must be taken to include every application for relief against a verdict by whatever name such relief is called, unless we are persuaded that the case is one which requires us to "relieve a party from the rigorous observance of the rules when satisfied that irreparable injustice will otherwise be done." (Vide order adopting Rules of Court, page 132).

But even were we convinced that the strict letter of the rule should be abated we could not, under the present

state of the record, grant relief. The petition alleges that the court erred in refusing plaintiff's witness to "read in evidence," or "testify to" or "identify" certain books and documents. The transcript of the testimony before us shows that certain books or documents, whatever they were, were offered in evidence, marked as exhibits, and upon them the trial judge based his rulings. But these exhibits have not been transcribed nor have they or copies been produced to the writer of this opinon. It may well be that the trial judge could, from his recollection of what had been produced at the trial, have reviewed the record, his rulings and the reasons for a new trial. But we can not be expected to review rulings upon questions of evidence made by a predecessor after an inspection of the exhibits unless we, too, are supplied with the exhibits.

Plaintiff's chief complaint is that books and documents, formerly the records of an insolvent insurance company, of which the Insurance Commissioner was liquidator and as such had the custody of such books and papers, were not received in evidence. It is clear that if such books and papers are to be regarded as public documents they are sufficiently authenticated when produced by the Insurance Commissioner, or by his clerk or by some one specially authorized by him to produce them: (Hockenburg v. Carlisle, 1 W. and S., 282). But it is equally clear, that when the originals are not produced and, in lieu of such originals, copies are offered, such copies must be authenticated in accordance with the act of March 7, 1889, (P. L. 9). We are, therefore, confronted with this question: were the documents which the trial judge excluded originals or copies? We cannot tell. They are not before us. We do know this, that certain documents were in fact excluded because they were copies and not being the best evidence were inadmissible. But were the copies so offered authenticated as required by the act and, therefore, under the terms of the act admissible in like manner as though they were the originals? Again we cannot tell; for they are not before us. It is quite obvious that we cannot grant relief against the verdict.

Now, January 2, 1922, the rule is discharged.

1

SCHULMAN v. PERKIN.

Negligence-Damages-Landlord and Tenant.

Any negligence on the part of a landlord in permitting water to flow from an upper to a lower story, especially after the attention of the landlord has been called to defective plumbing, is actionable.

Where, merchandise is damaged from the water coming as aforesaid from the upper story, the plaintiff is entitled to compensation in damages.

In the Court of Common Pleas of Lehigh County. No. 37 October Term, 1920. M. B. Schulman, trading as the Hamilton Haberdashery, v. Sam Perkin. Trespass. Rule for new trial and motion for judgment, n..o. v. Rule discharged, and motion dismissed.

Henry B. Friedman, for Plaintiff.

Dallas Dillinger, Jr., for Defendant.

Alonzo T. Searle, P. J., 22nd Jud. Dist., specially presiding. The plaintiff was engaged in the haberdashery business at No. 531 Hamilton Street, Allentown, Pennsylvania, and on May 11th, 1919, his stock of goods was damaged by water flowing from a room above his store, over and upon his said stock of goods used in his business.

The defendant owned the premises, the store in which the plaintiff was engaged in business and also the room above and from which the water flowed upon his said stock of goods as aforesaid. Plaintiff was occupying his said store under a lease from the defendant; and the said room above his store was occupied by the United States Navy Department, Washington, D. C., under a lease also from the defendant. Plaintiff alleged that the aforesaid damage was caused by the defendant negligently and carelessly permitting the water basin in said upper room to become and remain out of repair; after he had knowledge of this condition he had agreed to repair the same.

The case came on to trial before Honorable Milton C. Henninger and a jury on April 28th, 1921, and resulted in a verdict for the plaintiff in the sum of $251.61. Since the trial, Honorable Milton C. Henninger has died, and the defendant having made a motion for judgment non obstante veredicto, and also for a new trial, the motions are before us for disposition, both having been argued by the respective counsel. The testimony has not been transcribed, and it does not appear that defendant's counsel

has ever asked to have it transcribed; and the stenographer who took the testimony is now permanently out of the state.

Defendant has filed four reasons for judgment non obstante veredicto, but only three of which we deem it necessary to consider, namely, the first, second and third. (The fourteen reasons for new trial are dismissed.)

The first reason is "The learned court erred in not affirming defendant's first point," to wit: "That under all the evidence the verdict had to be for the defendant."

Though the evidence has not been transcribd, depositions were taken, from which it appears, in substance, by the testimony of Thomas J. Garry that he was a Chief Petty Officer of the United States Navy, occupying the room above this store; that he knew Sam Perkin; that on the first Sunday in May, 1919, he notified Sam Perkin of the condition of the plumbing in said room; that he had inspected the room and noticed that a spigot over a wash bowl in the rear room was running; that he tried to shut it off, but it couldn't be shut off; that Mr. Perkin's attention was called to this defective spigot, and Mr. Perkin then said: "Oh Yes, I will have that fixed, or fix it." On cross-examination he states that a plumber came to fix the said spigot, but that the water still ran from the spigot, and that on May 11th or 12th the damage happened.

The first reason is dismissed.

The defendant's second reason for judgment n. o. v. is as follows; "The learned court erred in not affirmed defendant's second point: "Plaintiff having failed in proving specific damages the jury had no means of estimating damages and therefore verdict must be for defendant."

Although the evidence is not before us, we thirk there must have been evidence of specific damages or the judge would not have left the case to the jury.

The second reason is also dismissed.

The defendant's third reason for judgment, n. o. v., is as follows: "The learned court erred in refusing to withdraw a juror and continuing the cause after reading plaintiff's first point," plaintiff's first point being as follows: "There being no denial offered under all the evidence your verdict must be for plaintiff in the sum of