De Moll v. City of New York

If the complaint states no cause of action except one for damages for personal injuries alleged to have been sustained by reason of negligence, the judgment must stand.

[2] The plaintiff insists, however, that he has pleaded a cause of action in nuisance, to which, he asserts, the statute does not apply. We are bound to agree that the plain language of the statute makes it inapplicable to actions founded upon nuisance.

[3] But does he plead a nuisance? He uses the word “nuisance” as a characterization; but this is insufficient. The pleader must state the facts. He states no facts which show a public nuisance from which he has suffered special damage. Does he state facts which constitute a private nuisance ?

[4] What is a private nuisance?

In Swords v. Edgar, 59 N. Y. 28 , 34 ( 17 Am. Rep. 295 ), the court said:

“For a private nuisance is anything unlawfully or tortiously done to the hurt or annoyance of the person, as well as the lands, tenements, and hereditaments of another. 3 Blk. Com., by Sharswood, 215.”

In Hogle v. Franklin Manufacturing Co., 199 N. Y. 388 , 396, 92 N. E. 794 , 797 (32 L. R. A. [N. S.] 1038), the court said:

“In a recent case, without attempting a general definition of a nuisance, we said that: ‘if the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as matter of fact; but, if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as matter of law.' Melker v. City of New York, 190 N. Y. 481 , 488 [ 83 N. E. 565 , 16 L. R. A. (N. S.) 621 , 13 Ann. Cas. 544].”

In McCluskey v. Wile, 144 App. Div. 470 , 473, 129 N. Y. Supp. 455 , 457, this court, in the First Department, said:

“Nuisance involves the element of positive wrongdoing as distinct from' mere acts of carelessness, whether of omission or commission.”

[5] The plaintiff alleges that the defendant, upon its own property, a private alleyway at a place remote from the public street, maintained a cesspool or drain for the purpose of drawing off the water which would accumulate because of the conformation of the surface of the alleyway. The drain consisted of holes, bored through the flagging, through which the water could run. The drain had no connection with an outlet, and the surface water percolated through the soil beneath the flagging. At intervals, for three years prior to the casualty, the water, through the faulty system of drainage, remained collected for many days before being finally absorbed. This condition arose generally through the holes becoming clogged. Of this condition the defendant had knowledge.

The defendant also maintains upon its property, below the surface, a tank for storing gasoline. The tank has a capacity of about 120 gallons. It is connected with a pipe that has an outlet at the front of the building erected on defendant’s premises. Leading up from the tank

“While acting in the lawful performance of his duties, pursuant to an order from a superior officer of the fire department of the city of New York, the plaintiff was, on or about the 17th day of June, 1910, in the said alleyway, making an examination of the projecting pipe of the aforesaid gasoline tank, and, though acting with all due care, was severely burned by an explosion and fire which extended over the whole of the surface of the said accumulated water in the alley. * * * Said explosion was due to the fact that on the day in question there was water in said alleyway, which, through defendant’s negligence and carelessness, had remained therein for several days, and there had been permitted, through the negligence of the defendant in failing to remove said water and in properly attending to said gasoline tank, some gasoline to escape from said tank in a manner unknown to plaintiff, and which spread over the surface of said accumulated water in such manner as not to be apparent or observed by plaintiff or any one entering said alleyway or area for lawful purposes, and said gasoline existing, as-above stated, without any warning, became ignited and exploded, and the flames thereirom filled the entire alley or areaway, came in contact with plaintiff, burned him, and caused the damages and injuries described herein. Said fire and explosion occurred and said injuries were received without any negligence on the part of the plaintiff, but were solely due to nuisance created as aforesaid.”

The maintenance upon private premises, below the surface of the-ground, of a tank for the storage of a limited quantity of gasoline is not in and of itself such an unreasonable, unwarrantable, or unlawful use of defendant’s property as would constitute a nuisance; nor is the maintenance, upon private property, of a drain for surface water by absorption or percolation; nor is the coexisting combination of both tank and drain. The facts do not present a case of a lawful creation becoming a nuisance through the wrongful use of it.

The structures we are considering, and the use to which they were put, do not suggest the presence of that element of wrongdoing, as distinguished from negligence, which is essential to the establishment of a charge of nuisance. The natural tendency of the acts of the defendant of which the plaintiff complains is not to create danger and inflict injury upon person or property. They do not, therefore, permit the finding of a'nuisance, as a matter of fact.

It is useless to discuss, as it is unnecessary to decide, whether there was negligence in permitting the gasoline to escape and mingle with the accumulated water in such quantities as to render the combination susceptible of ignition, and, if there was negligence, whether it was actionable in favor of the plaintiff against the city, in view of a rule which exempts municipal corporations from liability for damages,, where the municipality is engaged in a governmental, as distinguished from a corporate, function.

I advise an affirmance of the judgment, with costs. All concur.