89 N.Y.S. 1040 | N.Y. App. Div. | 1904
Annie Coleman, an infant, by her guardian, and George Coleman, father of Annie Coleman, bring actions to recover damages-for the injury to Annie Coleman, alleged to have been due to the negligence of the defendant, acting through its agents or employees,, in burning up rubbish on its premises. The infant plaintiff, a girl something over nine years of age, was1 seriously burned by reason of' coming in contact with the fire while overhauling the embers for the purpose of picking out brass from the pile, and both complaints-were dismissed and motions for new trials denied, upon the authority of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301). The plaintiffs appeal.
Upon this appeal the- plaintiffs urge that as they were nonsuited they are entitled to the most favorable inferences which a jury might properly have drawn from the evidence; a proposition well, supported by authority. Upon this basis it is insisted that the defendant having denied that it was the .owner of the premises-where the accident occurred, the: cases do not come within the rule-established in Walsh v. Fitchburg R. R. Co. (supra). We are of opinion, however, that this proposition is essentially unsound; a plaintiff cannot be permitted to “ blow hot and cold,” to quote the language of Lord Kenyon, with reference to the same transaction.. (Broom Leg. Max. [4th Eng. ed.] 169.) The complaints alleged that- “ the said defendant is the owner of certain premises in said Borough of Brooklyn, City of New York, consisting of a factory and vacant lots adjoining the same, situated between 34th and 35th streets, and has in its employ mechanics, firemen, engineers, laborers, superintendents, etc., for the carrying on of said business.” The theory of the plaintiffs’ cases was that the: defendant was negligent in lighting-a fire upon its own premises in the vacant lots where children had been permitted to play, without guarding the same against approach by such children. The defendant answering admitted that it was a. domestic corporation engaged in the manufacture of wall paper, “ and that its factory is situated upon the premises owned by it between Thirty-fourth and Thirty-fifth streets, in the Borough of Brooklyn,” and denied all of the other allegations of the complaints. It would require a very technical construction, and one not warranted by modern rules, to make these answers deny the ownership of the prem
The judgment and order in each case should be affirmed.
Judgment and orders unanimously affirmed, with costs in one ■case.