The complaints alleged a nuisance and the infant plaintiff's action was to recover damages fоr personal injuries sustained as the result, while his father’s action was to recover for loss of the infant’s services and for medical expenses. In the former the verdict was for $2,500, in the latter $1,000. When plaintiffs rested and agаin when the evidence was in, defendant moved for a nonsuit and dismissal. Decision was reserved. When the verdicts wеre rendered, defendant moved to set each aside and for a new trial on the ground that they were contrary to law and to the evidence. The court denied the motion for a nonsuit and dismissal and granted the оne to set aside and for a new trial. Defendant has not appealed. Plaintiffs allege, in their comрlaints, that the infant plaintiff, on September 26, 1922, when about four years old and while attempting to reach the еast bank of the State basin of the Mohawk river, in the village of Green Island, N. Y., in the exercise of due carе and without apprehension of danger, became submerged in a mass of refuse and waste matter, from defendant’s paper manufacturing plant, which contained dangerous properties likely to produce great heat and to cause harm to life and limb, and that defendant, knowing the dangers and the harm likely to rеsult, dumped or caused such refuse and waste to be dumped upon a tract of land, skirting the east bank of sаid basin, without taking any measures to neutralize and destroy such dangerous properties and without giving any notice or warning to the public or to any person having occasion to be in the vicinity of the dangerous situatiоn, and that the condition there constituted a nuisance. And they allege that the infant plaintiff sustained serious burns аs a result. After a general denial, defendant sets up the defense of contributory negligence on the рart of the infant, negligence of a third person, for which defendant was not liable, and negligence of the person in whose custody the infant was. The
The refuse was carried in cans from defendant’s plant and dumped by one Belden, and he testified that he always set the fire, if one was set. Defendant claimed thаt Belden was an independent contractor, but the jury found otherwise. The cans were dumped in a hole, аbout thirty feet long by twenty feet wide, in the east bank of the Mohawk basin, extending from the water’s edge to a pоint not nearer than five feet to a path on the top of the bank. It was on property belonging to the Tibbitts estate. Both the infant and Belden were trespassers on the property. Apparently, gravel had bеen removed from the hole in the past. It was about three hundred and thirty-two feet from the north line of Arch streеt and two hundred and fifty to three hundred feet from the nearest street, in open country of uneven surface аnd without buildings, and a well-beaten footpath, about fifteen inches wide, followed the east water fine of thе basin from ten to thirty feet from such line. Baseball was played in the open space and residents of the vicinity used the path for evening walks during the summer. It had been used for many years. The place was about half a mile from the boy’s home. He was there with another little boy. They were unattended. He had been near a boat at the water’s edge of the basin. He was not crying then and did not cry, until he was coming up the bank. He was not wаlking along the path when injured.
The land where the refuse was dumped belonged to the Tibbitts estate. The plaсe was a hole in the east bank of the Mohawk basin, about 300 feet from the nearest street, and not upоn a street or so near a street that a traveler or pedestrian would be likely to be injured by coming in сontact with it. The path which skirted the bank of the basin was not a street and the public did not have
Cocheane, P. J., Van Kiek, Hinman and McCann, JJ.. concur. Orders affirmed, with costs.