Opinion
November 12, 1941.
Appeal from Supreme Court, St. Lawrence County.
Present — Hill, P.J., Crapser, Heffernan, Schenck and Foster, JJ.
Plaintiff, an infant seven years of age, was visiting his parents who were employed by defendants at defendants' summer home on Elizabeth island, in Black Jake, St. Lawrence county. It appears that in 1925 and 1926 John E. Eustis delivered some fulminate caps to one Conroy, a former employee of defendants, for safe-keeping. Conroy put the caps in a cupboard in his own home, where they remained for several years. In 1931 and 1932 he took them over to the island where defendants had their camp and put them in an old boat which was overturned on top of a small tool house. It appears that this boat had not been used since 1928 and was unfit for use. Plaintiff's father and mother arrived at the camp on June 30, 1940, and the plaintiff arrived about three weeks later. The father of the plaintiff removed the caps from underneath the overturned boat with the aid of a rake and placed them on a shelf in the tool house. The plaintiff found the caps either on the ground outside of the tool house or in the tool house, and taking the same to his room in the camp, he placed several lighted matches in one of the caps, which finally caused the same to explode, thereby producing the injuries for which this action is brought. There is no testimony that the defendants had notice of the presence of the caps prior to the injury, and no testimony was offered upon which a jury could find a verdict for the plaintiff. As in the case of Babcock v. Fitzpatrick ( 221 App. Div. 638; affd., 248 N.Y. 608), the storage of these fulminate caps was not the proximate cause of the injury. The record clearly shows that the order and judgment appealed from should be affirmed. Judgment and order unanimously affirmed, with costs.