Reider v. City of Mt. Vernon

There was an order entered in this case directing that plaintiff’s exceptions be heard in the first instance by the Appellate Division, and the exceptions are here to be heard upon a motion for a new trial. The single exception presented is that to the ruling of the trial court granting defendant’s motion for a dismissal of the complaint at the close of plaintiff’s case.

The action is brought against a municipal corporation, and liability is asserted upon the theory that the defendant created a public nuisance through which the plaintiff sustained personal injury.

The principles of law applicable to the question of liability presented for consideration are well settled, and the justification for this opinio.n is that, one injured in the same casualty having heretofore recovered damages (De Agramonte v. City of Mt. Vernon, 123 App. Div. 717 , 108 N. Y. Supp. 236 ), the plaintiff is entitled to know why we distinguish between that case and the one at bar. In the De Agramonte

The plaintiff here was a spectator ab.the display of fireworks and was injured through a premature exploMpn while in Hartley Park, a public place in the city of Mt. Vernon. The plaintiff’s counsel conceded that plaintiff was confined to nuisance as h. basis of recovery.

The mayor of the city gave what purported tb\be a written permit to a social organization for an exhibition of fireworks in Hartley Park on the 2d day of August, 1902. Hartley Park was not in that part of the city known as the fire limits. There was no stamte which conferred upon the mayor the power to grant the permit. 'There was an ordinance of the city under which the mayor assumed to? act. That ordinance reads: \

“The firing of a gun, pistol, squibs, crackers, gunpowder, or othekcombustible substance in the streets, or elsewhere in that part of the city knoV as the fire limits, and the blowing of horns, are hereby forbidden: Provided, Mtowever, that this section shall not apply to the firing of crackers or fireworks Va the fourth of July, or to the day on which the anniversary of our nationalVuhBpendence shall be celebrated, or except by general permission of the mayor*-”

[ 1 ] The precise question presented for our determination is: Diid that ordinance authorize the mayor to grant a permit for firing gunpowder or other combustible substances in a place in the city other thaiV the streets, without the fire limits thereof? The trial justice held] that the ordinance conferred no such authority upon the mayor. Ii think his construction was the true one. The prohibition was: (1)

Against doing the forbidden thing in the streets; (2) against doing it generally in that part of the city known as the fire limits. This prohibition could be suspended by general permission of the mayor. Against firing gunpowder or other combustible material in places outside of the fire limits other than the public streets, there was no prohibition and no license was necessary or authorized.

[2] It is essential to the success of the plaintiff to establish that the executive of the city was authorized by statute or by the governing body of the municipality, acting within the scope of its statutory powers, to permit the doing of an act, dangerous in itself, to the extent of constituting a nuisance, thus participating in the creation of the nuisance. De Agramonte v. City of Mt. Vernon, 112 App. Div. 291 , 98 N. Y. Supp. 454 ; Speir v. City of Brooklyn, 139 N. Y. 6 , 34 N. E. 727 , 21 L. R. A. 641 , 36 Am. St. Rep. 664 ; Landau v. City of New York, 180 N. Y. 48 , 72 N.

Plaintiff’s exceptions overruled, and motion for a new trial denied, and judgment directed for the defendant dismissing the plaintiff’s complaint, with costs. All concur.