98 Misc. 314 | N.Y. Sup. Ct. | 1917
The liability of the demurrant, the defendant Morris Park Estates, is .sought to be sustained upon the theory that having created the nuisance it is answerable for its continuance after having parted with the possession of the land. The allegations of the complaint, however, liberally construed, do not state a nuisance. It is clear from the averments of the complaint that the primary cause of the accident Avas the failure to cover or guard the pit into which the deceased fell and received burns from an explosion of gas or noxious vapors contained in the pit thereby causing his death, and this happened while the demur-rant’s grantee was in possession and control of the premises. There is no allegation that the pit was so located that the gas and noxious vapors contained therein were diffused over the surrounding neighborhood so as to endanger the lives of persons using the highway or living in the neighborhood, or that they threatened injury to adjoining property. The only connection that the presence of gas and noxious vapors within the pit has with the alleged accident is that the deceased fell therein and was injured as above stated. It is not apparent, therefore, that the gas and noxious Ampors contained in the pit could occasion injury to persons using the highway or indeed to any one except to those who went upon the premises and fell into the pit. The complaint does not allege that the deceased was using the highway at the time of the accident nor that he fell into the pit from the highway. Neither does it allege that the pit was in close proximity to the highway. It merely states that it was
Demurrer sustained, with costs.