Carroll v. City of Dunkirk

Headnote

Municipal corporation s — streets — gas mains — when owner of gas main may recover over from municipality amount paid as damages for injury from explosion of leaking gas on theory that it was primarily responsible for break in main.

Carroll v. City of Dunkirk, 198 App. Div. 964 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 16, 1921, affirming, a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term. The complaint alleged that prior to December 13, 1913, the plaintiff was the owner of certain gas pipes or mains laid and installed through

and upon East Seventh street in the city of Dunkirk, which gas pipes or mains plaintiff acquired by purchase from the Citizens Gas and Fuel Company; that during the years 1912 and 1913, in anticipation of the paving of East Seventh street, the board of water commissioners of the city of Dunkirk disturbed the soil in East Seventh street in and near the gas pipes of plaintiff; that thereafter and in 1913 the defendant city of Dunkirk required certain machinery to be used in and about the paving of Seventh street whereby said gas main was broken, and by reason of such break the gas escaping from said main found its way into the cellar of the house located on the southerly side of East Seventh street in which one Mabel Luther lived, causing an explosion and injury to the said Mabel Luther, who thereafter in an action against plaintiff and defendants recovered damages therefor. Plaintiff having paid the amount of the judgment seeks in this action to recover from the defendants the amount paid upon the ground that they were primarily responsible.