Buddin v. Fortunato — 31 N.Y. St. Rep. 278

Majority

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Theodore Buddin, Resp’t, v. Maicho Fortunato, App’lt.

(New York Common Pleas, General Term,

Filed June 2, 1890.)

Headnote

■JL. Negligence—Blasting.

One who contracts to do hlas£&g',f0r' the- cityfe not relieved' froimresponsibility to persons injured ftereby, although} lie- has suMet thmeom tract to another, by whose negligence; such, injury was. causedL

2. Same—Damages.

A lessee of premises may remver-for injuries; thereto where: the-landlord is not bound by covenant to repair, and it appears that the tenant was. obliged to make repairs to protect Ms- property and make the buiffling tenantable.

3. Same.

A recovery1 cannot be had forinjuries to a wagon left "with plamtiffi'tohe repaired, as he is only a bailee for hire as; to such property and; not liable to the owner for injury caused by the wrongdoing of another.

Appeal from a judgment of the- district, court in the city of New York for the eleventh: judicial district.

G. S. Fryer, for app’lt; «£- G. Bitter, for resp’t.

The action was brought to recover damages, to plaintiff’s property caused by alleged negligence in blasting:. On the trial it was proved that the defendant had entered into a contract with the city of New York to do certain work which involved the necessity of blasting in Ninety-first street, in the vicinity of plaintiff’s premises. By'the terms of this contract he was precluded from sub-letting any part of it except by a consent in writing on the part of the city, endorsed on the contract.

No actual negligence or want of skill on the part of the defend

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ant ms proved, and Ms counsel moved to dismiss the complaint <on this ground, which "was denied 'and defendant excepted

He ¡afeo 'endmvowd to show in Ms defense that he had sub-let the .contract 'to one Hicholas Fortunato; that the latter was doing the work, -and he was in no manner interested in it except as to the ¡result;; that he ted no control over the manner, mode or means used to -obtain tike result, nor over the workmen employed, and (consequently he was not liable to the plaintiff for any negligence -on the part of Richolas or Ms servants. Evidence tending to prove these ifardts was excluded and defendant excepted ^

^ It is wdl ¡settled, -as appellant contends, that as a rule, in actions for damages caused by alleged negligence, either actual ¡negligence .must be áhown or facts and circumstances proved from which the "inference of negligence can be fairly and reasonably (drawn.; '¡and it is equally well settled that one person cannot beheld for the damage mused by the negligence of another unless-, the relation <®f master ¡and servant, or principal and agent, exists bétweea the person sought to be held and the person whose negligent adtUB -complained of. But both of these rules have their ■ exception^, and an ¡adiion. brought to recover damages caused by blasting 3b cone of these. #

In Hay v. The Cohoes Co., 2 N. Y., 159 , the court expressly" held.that.5n such ¡an .-action the defendant was liable-for such in-juries although no -negligence or want of skill was1 alleged or" ■proved. Jhrd in Tremain v. The same, 2 N. Y., 163 , in the same-.kind-o£ ¡--adEon, it was held that evidence tending to show the-work w -done in. the most careful manner was inadmissible,, ■.there .being no claim to recover exemplary damages. See, also, St. Peter v. Denison, 58 N. Y., 416 .

In the-sase under ¡consideration, the defendant contracted witif' -.the city to cdo all uequlsite blasting. This was,- from its nature, -dangerous. When .the undertaking is one intrinsically dangerous to (Others, the person undertaking it is not relieved from responsibility to any person injured thereby, although he has entered into ;a-.e®atract vSh some person to perform it, and the injury has oc-ourred -through the ¡negligence of the latter. Moak’s Underhill -on 'Torts, ‘277, .and -eases cited. Hexamer v. Webb, 101 N. Y., at p. 387; 1 N. Y. State Rep., 46.

The theory on which the case was tried by the court below was entirely correct, and it committed no error either in refusing to dismiss the .complaint -or in excluding evidence offered by defendant.

In awarding judgment, the court allowed certain items for damage to the premises, of which the plaintiff was only lessee; and also for injuries to a phaeton which did not belong to him at the time. The appellant contends it was error to allow either of these items.

As to the damage to the premises, the lease is not before us, and it does not appear that the landlord was bound by any covenant to keep the building in repair, and in the absence of such proof none will be inferred. Witty v. Matthews, 52 N. Y., 512 ; Howard v. Doolittle, 3 Duer, 464 . Besides, it appears from the

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evidence that it was necessary for the plaintiff to make some of the repairs he did in order to protect his property, and all of them to make the "building tenantable after the injury. Therefore, we think these items were properly allowed. Nor can the defendant be made to pay twice for such damages, as what he is compelled to pay for that purpose in this action could not be again recovered by the landlord in any action he may bring for injury to the freehold.

As to the phaeton, the plaintiff was not the owner of it at the time; it had been left with him to be painted. At most he was ■ a bailee for hire and bound to use ordinary care only. Fox v. Pruden, 3 Daly, 187 . He was not liable to the owner for the injury occasioned by the wrongful act of another. It was, therefore, error to allow damage to it, and the judgment must be reversed for this reason, and a new trial ordered, with costs to the appellant to abide the event unless the plaintiff within ten days stipulates to reduce the judgment by thirty-seven dollars, the amount allowed for such damage, in which event the judgment will be affirmed, without costs of this appeal to either party against the other.

Larremore, Ch. J., concurs.