98 N.Y.S. 454 | N.Y. App. Div. | 1906
In the evening of August 2,1902, the plaintiff, when in a street of the city of Mount Vernon, saw a flash of light, heard an explosion,
The jury heard only evidence, for the plaintiff. After the case was called on Friday, the then corporation. counsel moved to dismiss on a' statutory ground,
This case may be discriminated from Speir v. City of Brooklyn (139 N. Y. 6) and Landau v. City of New York (180 id. 48) by the fact that the'fireworks were no.t displayed in a city street but in a city park. The display there was not a nuisance per se. In Crowley v. Rochester Fireworks Co. (183 N. Y. 353) Cullen, Ch. J., for the court, says: “ It may well be that a discharge' of fireworks in a city- street, at least in a city densely populated, like the city of Mew York, -constitutes a nuisance per se, but we are of opinion that it is not necessarily illegal to exhibit a display of fireworks in an open space like a park, where an exhibition, if conducted with care, involves no serious danger to -persons or property. (Opinion of
There is proof that a permit wás issued by the mayor, but neither the permit'nor its terms was proven, nor was the ordinance giving authority to the mayor in the premises read in evidence. I think, however, in discussing this appeal we may consider the ordinance as if read in evidence. (Dunham, v. Townshend, 118 N. Y. 281, 286; Laws of 1892, chap. 182, §§ 236, 237.) The ordinance prohibits “ the firing of a gun, pistol, squibs, crackers," gunpowder or other combustible substance in the streets or elsewhere ” within the city fire 1 quits, under a “ penalty; * * provided, however, that this section shall not apply to the firing of crackers or fireworks on the Fourth of July, or to the day. on which the anniversary of our independence shall be celebrated, or except by general permission of the mayor;”
The permit was in effect a license to do an act not unlawful. (Crowley v. Rochester Fireworks Co., supra.) Given by authority, pursuant to ordinance, it merely authorized the act “ to be done in a careful, prudent and lawful manner.” (Village of Port Jervis v. First Nat. Bank, 96 N. Y. 556, 557; Mayor v. Brady, 81 Hun, 440, 444.) There are authorities to the effect that if the damages were due to the negligent doing of the act by the licensee, the defendant licensor is not liable merely because it licensed an act lawful and not per se dangerous. (S. & R. Neg. [5th ed.] § 263; Masterton v. Village of Mount Vernon, 58 N. Y. 391; Dillon Mun. Corp. [4th ed.] § 953 ; Wheeler v. City of Plymouth, 116 Ind. 158.) In Wheeler's Case (supra) under a similar ordinance the mayor granted permission to fire gunpowder in an - anvil in a. lot in the city, where there were pebbles and gravel, and in firing the anvil, pebbles and gravel were cast upon the appellant’s building. The court, per -Elliott, J., held that “ the act of the mayor in granting permission
The plaintiff called an- expert to testify that his employers, in setting off explosives, use the best of drawn steel half-inch tubes, reinforced with bands at top and bottom, anchored .in the ground-so iri case of an explosion the pieces cannot , scatter. He testified that the exhibit shown to him was quarter of an inch cast iron, and' that there was a difference in the" power of resistance between the construction employed by his firm and cast iron, in that the latter would spread upon an explosion, but the former would not save in an extraordinary instance. He further testifies that he would not use an iron tube. I think we would go too far if we were to impute negligence from the absence of express prescription in the' permit of the kind of tube that must be used. „ In any event the permit
Two eminent judges, one after calling attention to the unguarded language often employed to express the measure of municipal duty under similar circumstances, have said “There must be wilful misconduct or culpable neglect to create liability.” (Andrews, J., in Hunt v. Mayor, 109 N. Y. 134; Earl, J., in Danaher v. City of Brooklyn, 119 id. 241.) In the absence of all specific requirement by statute or ordinance, I think that upon the record the city cannot
I advise that the judgment and order be reversed and a new trial granted, costs to abide the event. ’
Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred.
Judgment and ord'er reversed and hew trial granted, costs to abide the event.
See charter (Laws of 1892, chap. 182), §164.— [Rep.
112 Ind. 451; 2 Am. St. Rep. 209.- [REP.