Pitcher v. Lennon

The action was commenced against William F. Lennon, as owner, and Comes and Gleaves, as contractors, to recover damages caused by the collapse in March, 1895, of four large buildings in course of erection, known as “Nos. 151,153, 155 and 157 Orchard Street,’’—an event which has passed into our local history as the “Orchard Street Disaster.” At the trial the action was discontinued as to the contractors, and proceeded as to the owner, on the theory avowed by the plaintiff’s attorney,— that the structure was erected in a manner forbidden by statute, was a menace to life, and, in legal effect, a nuisance (Code, § 1660), and that such violation was the proximate cause of the fall and of the decedent’s death. Without regard to the form in which the question has come up, the courts have invariably held that every person violating a statute is a wrongdoer, negligent in the eyes of the law, and that any innocent person injured by such violation, if it be the proximate cause of the injury, may, in a proper case, recover damages from employer and contractor, jointly or severally, it not being in the power of an owner to escape liability by making a contract with another to commit the wrong for him. Jetter v. Railroad Co., * 41 N. Y. 154 ; McRickard v. Flint, 114 id. 222 ; 23 St. Rep. 100 ; Creed v. Hartmann, 29 N. Y. 591 ; Shepard v. Railroad Co., 35 id. 641 ; Wilson v. Turnpike Co., 21 Barb. 68 ; Donnegan v. Erhardt, 119 N. Y., at page 474; 29 St. Rep. 589 ; Lambert v. Railroad Co., 70 N. Y., at page 109; Storrs v. City of Utica, 17 id. 104; Swords v. Edgar, 59 id. 28, 34; Masterson v. Railroad Co., 84 id. 247; King v. Railroad Co., 66 id. 185 ; Jones v. Chantry, 1 Hun, 613 ; Willy v. Mulledy, 78 N. Y. 310 ; Congreve v. Smith, 18 id., at page 82; Dorrity v. Rapp, 72 id. 307; Sexton v. Zett, 44 id. 430: Baxter v. Warner, 6 Hun, 586 ; Dygert v. Schenck, 23 Wend. 446 . A public nuisance consists, among other things, in unlawfully doing an act, or omitting to perform a duty, which act or omission in any manner renders a considerable number of persons insecure in life. Pen. Code, § 385.. One who has sustained damage peculiar to himself, from a common nuisance, has a cause of action, though a like injury has been sustained by numerous others. Francis v. Schoellkopf, 53 N. Y. 152 ; Adams v. Popham, 76 id. 410. No degree of care will excuse the creator of a nuisance, and for that reason negligence is generallv not regarded as a factor in such a case, though, as these torts are frequently co existent, it is at times difficult to suppress the-appearance of negligence, or evidence given to explain away its presence. The gravamen of the charge against the owner is the violation of that part of section 483 of the building law (Laws 1892, c. 275) which provides that the utmost weight allowed on a

The motion for a new trial must be denied.