153 N.Y.S. 425 | N.Y. App. Term. | 1915
Defendant was lawfully engaged in excavating a trench on West Eighty-second street for the purpose of laying conduits for the fire department. As the result of a blast, a nearby water main was broken and the water eventually found its way into the cellar of plaintiff’s apartment house, where it inflicted damage for which recovery is sought. The trench was six feet north of the southerly curb. The water main was four feet two inches below the surface of the street, one foot six inches below the bottom of the trench, and eighteen inches north of it. A “ water-gate ’ ’ on the surface was ten feet south of the northerly curb. The water main rested on rock, touched a manhole in the middle of the street, and was, at the time of the explosion, covered with dirt and concealed from view. As a general rule water mains are on the north side of the street, and, of course, on the same side as the water gate. In the case at bar, for some reason not apparent, the main had been deflected south and around the manhole in the middle of the street. There were no maps or plans anywhere on file showing the location of the water main.
The respondents contend that as the blast caused the escape of the water from their land there was a trespass (by the water) caused by the act of the defendant ; and further, that there was negligence in the manner in which the blast was fired.
We. are left, therefore, with the single item of defendant’s alleged admission upon which to base a claim of negligence. This admission, in words, was, as testified to by plaintiffs: “ He said there was an overcharge of powder on the job.”
As the record lies before us, I have grave doubt whether a finding that the statement had actually been made by defendant would not, in face of his denial, be against the weight of evidence, so extraordinary would the statement have been under the circumstances, but the utterance is altogether too cryptic to constitute the basis for a recovery.
In my opinion, the judgment should be reversed and the complaint dismissed.
Judgment reversed, with costs, and complaint dismissed, with costs.
Guy, J., concurs; Pendleton, J., not sitting.
Judgment reversed, with costs.