254 A.D. 680 | N.Y. App. Div. | 1938
Of its own motion, the court amends its decision rendered March 25,1938 [ante, p. 585], to read: In an action to recover the sum of $1,990.83, constituting a charge by defendant for the services of its fire department in extinguishing a fire at a dump beyond the city limits, which charge was claimed to be in accordance with a contract with the plaintiff governing the collection and disposal of-ashes, rubbish and garbage, and for judgment declaring the rights and obligations of the parties with respect to fires occurring on such dump, judgment decreeing that the sum of $1,990.83 was properly chargeable against the plaintiff reversed on the law, with costs, and judgment directed for the plaintiff in the sum of $1,990.83, with interest and costs. The obligation of the plaintiff under the contract to maintain and regulate the use and operation of the dump in question was to use reasonable efforts to prevent and extinguish fires. It was not within the contemplation of the contract, however, that, in the event of such fires, the city should make an arbitrary charge for the extinguishment of them by its fire department, operating beyond the corporate limits. Such an unusual power required express authorization in the contract of the parties, particularly in the light of the landlord and tenant relation
