Simmons v. Everson — 36 N.Y. St. Rep. 265

Majority

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Josephine Simmons, Adm’rx, et al., Resp’ts, v. Giles Everson et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed February 24, 1891.)

Headnote

1. Nuisance—Liability op joint ownebs.

Persons who by their several acts or omissions maintain a public or common nuisance are jointly and severally liable for such damages as are the direct, immediate and probable consequence of it.

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2. Same.

Where certain hrick walls in front of adjoining houses, which had heen left standing after a fire fell into thé street and killed plaintiff's intestate, and such fall was the direct and immediate consequence of the several acts of such adjoining owners in suffering the portions standing on their own lots to remain unsupported after they had visibly begun to incline toward the street, and it was obvious before the fall, as it was after, that if any portion of. the wall fell a large part of it must go into the street, Held, that such owners were jointly liable.

Appeal from a judgment of the general term of the fourth judicial department, affirming a judgment entered on the decision of the circuit court. *

The trial court found that for many years prior to October 18, 1887, the appellants owned in severalty three lots, each being twenty-two feet wide, and bounded on the east by the center line of South Salina street, in the city of Syracuse. The south lot was owned by the defendant Lynch; the middle one by the defendant Pierce, and the north one by the defendant Everson On these lots stood three brick stores, separated from each other by brick partition walls, extending from the foundations to the roofs. A continuous brick wall, of uniform height (about sixty feet) and thickness, stood adjacent to the west line of the street, and formed the front of the buildings. The partition walls and the front wall were interlocked or built together.

On the date mentioned the three stores were substantially destroyed by fire, nothing being left standing except the front wall, a part of the partition walls and a small part of the wood work in the front of Everson’s building. Shortly after this event the front wall began to lean towards the street, and continued to incline more and more in that direction until November 17, 1887, when it gave way near the point where it was united with the partition wall between the buildings of Lynch and Pierce, carrying down the entire front, and part of both partition walls. Material from the part of the front wall standing on the lots of Everson and Pierce, and from their partition wall, fell on and killed the plaintiff’s intestate, who was lawfully on the sidewalk near the boundary between their properties. No part of the walls on Lynch’s lot fell on decedent It was found that immediately after the fire the front and part of the partition walls became weak, unsafe, dangerous and liable to fall into the street, and that each of the defendants was careless and negligent in not removing or supporting the walls on his own lot, and that the several neglects of the defendants united and directly caused the walls to fall. It was further found that these walls were so unsafe that they were a public nuisance, and also that the decedent did not negligently contribute to.the accident, or to his own death. The damages were assessed at $5,000. •

M. M. Waters, for Giles Everson, app’lt; Hiscoch, Doheny & Hiscoch, for Patrick Lynch, app’lt; Smith, Kellogg & Wells, for Sylvester P. Pierce, app’lt.; Wm. Nottingham, for resp’t.

It is urged in behalf of the defendants that at most this is but a case of several independent acts of negligence

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committed by each, the joint effect of which caused the accident, and for which they are not jointly liable within the rule laid down in Chipman v. Palmer, 77 N. Y., 51 .

The case at bar does not belong to the class of actions arising out of acts or omissions which are simply negligent, and while the defendants did not intend by then’ several acts to commit the injury, their conduct created a public nuisance, which is an indictable misdemeanor under the statutes of this state, Penal Code, §§ 385,387; Vincett v. Cook, 4 Hun, 378 , and at common law. Regina v. Watts, 1 Salk., 357, S. C. 2 Ld.Raym., 856; 1 Russ. Cr. (5th ed.) 423; 2 Whar. Cr. Law, § 1410; Big. Torts, 237; Pol. Torts (2d ed.), 345; Stephen Dig. Cr. Law, art. 176; Indian P. C., § 268.

Persons who by their several acts or omissions maintain a public or common nuisance are jointly and severally liable for such damages as are the direct, immediate and probable consequence of it. Irvine v. Wood, 51 N. Y., 224 , 230; Slater v. Mersereau, 64 id., 138; Timlin v. Standard Oil Co., 54 Hun, 44 ; 26 N. Y. State Rep., 42; Klauder v. McGrath, 35 Pa. St., 128 ; 1 Shear & R. Neg. (4th ed.), § 122; Pol. Tort (2d ed.), 356.

The fall of these four story brick walls into the street was the direct and immediate consequence of the several acts of the defendants in suffering the portions standing on their own lots to remain unsupported after they had visibly begun to incline towards the street, and it was as obvious before as it was after the accident that if any part of the front wall fell, a large part of it must, and that it would go into the street.

The judgment should be affirmed, with costs.

All concur, except Vann, J., not voting.