Opinion
April, 1896.
J.M. Gardner, for plaintiffs.
D.M. Neuberger, for defendant.
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. R.R. Co., 2 Keyes, 154; McRickard v. Flint, 114 N.Y. 222; Creed v. Hartmann, 29 id. 591; Shepard v. R.R. Co., 35 id. 641; Wilson v. Turnpike Co., 21 Barb. 68; Donnegan v. Erhardt, 119 N.Y. 474; Lambert v. R.R. Co., 70 id. 109; Storrs v. City of Utica, 17 id. 104; Swords v. Edgar, 59 id. 28, 34; Masterson v. R.R. Co., 84 id. 247; King v. N.Y.C. H.R.R.R. Co., 66 id. 185; Jones v. Chantry, 1 Hun, 613; Willy v. Mulledy, 78 N.Y. 310; Congreve v. Smith, 18 id. 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. Penal 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 generally not regarded as a factor in such a case; though, as these torts are frequently coexistent, 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 (1892, chap. 275), which provides that the utmost weight allowed on a superficial foot of brickwork laid in lime and cement is eleven and a half tons. The violation consisted of the erection of an airshaft wall, imposing a weight of sixty to ninety tons on a superficial foot of brickwork foundation, and this, it is claimed, was crushed in by the enormous weight, causing the collapse complained of. The court instructed the jury that while the defendant was chargeable with knowledge of the law, he was not so chargeable as to the facts, and left it to the jury to determine how far the defendant knew or ought to have discovered from his frequent visits to the buildings the true condition of things; with the qualification that if they found that he did all that a prudent man should reasonably be expected to do under like circumstances, he was not liable. The jury found all the facts in favor of the plaintiffs, and awarded them $1,500 damages; a verdict which is moderate in amount. The cases of respondeat superior cited by the defendant have no application, considering the theory on which the trial proceeded. 4 Wait's Act. Def. 772, and other authorities cited supra. The creator of a nuisance is liable without notice, while a continuer is not liable without proof of scienter. 1 Chitty's Pr. 384; Hubbard v. Russell, 24 Barb. 404; Brown v. R.R. Co., 12 N.Y. 486; 4 Wait's Act. Def. 770; Wasmer v. R.R. Co., 80 N.Y. 212. The court charged that the owner was not liable unless the nuisance was visible to him, and that the fact that the building department approved of the plans was a circumstance to be considered in his favor. Apparently the rights of the defendant were properly guarded, and the record fails to disclose any error to his prejudice of which he can rightfully complain. The motion for a new trial must be denied.
Motion denied.