133 N.Y.S. 118 | N.Y. App. Div. | 1911
This is an action by the city of New York to recover the amounts which it had been obliged to pay for damages for personal injuries resulting from the creation of a nuisance in a public street. The facts out of which the action arose are as follows:
On August 3, 1903, a political organization known as the William S. Devery Association gave a display of fireworks at Eighth avenue and Twenty-eighth street, a crowded thoroughfare in the city of New York. As a result of the display, a horse attached to a cab took fright and ran away, knocking down and seriously injuring a little girl named Naftel. She and her father sued the city for damages and recovered judgments which have been paid and the amount of which it is now sought to recover. The fireworks were purchased from the defendant Lloyd, and they were actually set off by one of his clerks named Goesser. Whether he acted in behalf of Lloyd or of the Devery Association is one of the disputed questions in the case. On August 3, 1903, the day of the display, Lloyd presented to the fire department an application for a permit to be granted to him “to explode fireworks in the city of New York,” and with the application filed an undertaking signed by himself and the United States Fidelity and Guaranty Company, which recited the application of Lloyd for a permit “ to use and keep explosives in the city of New York,” and undertook to “ well and truly pay to the said city of New York, its certain attorneys, successors or assigns, any loss, damage or injury resulting to persons or property from the use or keeping of such explosives.” The city was unable to produce upon the trial the permit issued to Lloyd, and it is perhaps not entirely clear whether or not such a permit was actually issued, although, in our opinion, the evidence would have justified a jury in finding that it had been. In the view we take of the case, however, that question is not important on this appeal. When the Naftel actions were begun against the city it served notice upon Lloyd and William S. Devery, the president of the
Ingraham, P. J., and Miller, J., concurred;. Laüghlin and Dowling, JJ., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.