Opinion
October 24, 1967
Plaintiffs appeal from a judgment dismissing their complaints upon verdicts of no cause of action. Plaintiffs delivered lumber to the defendant for the purpose of having it dried in its kiln and while this lumber was on defendant's premises, the building in which it was housed, burned and a quantity of plaintiffs' lumber was destroyed. Plaintiffs brought suit grounded in negligence and following a trial, the jury unanimously found verdicts in favor of the defendant. Plaintiffs do not contend that the verdict was contrary to the weight of the evidence or that it was contrary to law, but ground their claim for reversal upon the sole ground that the court refused to charge the provisions of section 270 Lab. of the Labor Law which relate to the type of fireproof construction required in the erection and maintenance of a factory. We would first observe that the complaint in the action brought by Oval Wood Dish Corporation does not charge the violation of any provision of the Labor Law. That cause of action is grounded solely in ordinary negligence, and it should not now be heard to otherwise complain. Assuming, however, that both complaints had charged violations of section 270 Lab. of the Labor Law, we conclude that the court's refusal to charge the section was entirely proper. Not only was there no mention or claim of any such violation in the openings and summations of plaintiffs' counsel, but there was no proof or evidence offered during the trial which in any way showed the violation of any section of the Labor Law and, indeed, there was no showing or intimation that any such alleged violation was the proximate cause of the fire. In the absence of any such proof, assuming arguendo that the building was a factory and the construction of the building did not comply with the quoted provisions of the Labor Law, the trial court did not commit error. A review of the record clearly supports the conclusion that the evidence did not support any claim or contention that any alleged violation of the Labor Law was or could be the proximate cause of the fire and under such circumstances, any recovery, of necessity, would be reversed ( Pelkey v. Brennan, 12 A.D.2d 215). It should be added here that the plaintiffs completely failed to show any evidence to establish what in fact was the proximate cause of the fire. Judgment affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.