51 N.Y.S. 761 | N.Y. App. Div. | 1898
The recovery in this case is for personal injuries sustained by the plaintiff in consequence of the explosion on the 5th July, 1893, of a powder house or magazine situated within the limits of the city of ¡Kingston, and owned by the defendant Hutton, and leased by him to the defendant the Lañin & Rand Powder Company, and used, as it is claimed, by or for the benefit of the firm of Van Deusen Bros., of whom the other defendant, Van Deusen, is .the survivor. The trial court held that, upon the undisputed facts, all the defendants were liable in case the powder house was a nuisance, and the question whether or not it was a nuisance was submitted to the jury, together with .the question of the amount of damages, in case they found there was a nuisance. The principles laid down in the case of Heeg v. Licht, 80 N. Y. 579, justified, we think, the submission of the case to the jury. The main question here is whether the trial court erred in holding that all the defendants were liable in the event of a finding of the existence of a nuisance. The magazine was built by Hutton in 1878, on a lot then and still owned by him. It was built for the purpose of storage of powder, and from the time it was built it was used right along. On August 13, 1891, Hutton leased the lot and magazine to the Laflin & Rand Powder Company for the term of five years at an annual rent. It was the>expectation of both parties that the magazine would be used for the storage of powder. The rent was paid up to the time of- the explosion. The lessee was engaged in the manufacture of powder at its mills in the town of Esopus. It sold powder to the Schaghticoke Powder Company, and, by the direction of the latter company, it delivered the powder to Van Deusen Bros., who kept a drug store in the city of Kingston. They gave receipts for the powder as it was brought to their store by the teams of the Laflin-Rand Company. The Van Deusens kept the keys of the magazine, and as the powder was brought to their store they would send a man along with the keys, or give the keys to the drivers, and the powder would then be deposited in the magazine. This method of deposit or storage»was with the knowledge and consent of the Laflin-Rand Company. The Van Deusens received the powder for the purpose of sale on commission for the Schaghticoke Company. As they made sales, they took the powder from the magazine and delivered it to the purchasers. The average
Judgment and order affirmed, with costs. All concur.