
    Simon Adler, Respondent, v. Kerry E. Fox, Appellant.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Cause of action—'Facts constituting cause — Liability for blasting. Trespass—Acts constituting trespass and liability therefor — Trespass on real property.
    Where'a water pipe leading into plaintiff’s house was broken by the.falling in of a large section of rock caused by an explosion while defendant’s workmen were blasting out rock for a trench, defendant is not liable as for a trespass upon real property if the rock fell from mere concussion and not as a direct result of the blast.
    Appeal by the defendant from a judgment of the Municipal Court of the city of blew York, borough of Manhattan, sixth district, in favor of the plaintiff, rendered after a trial by the court without a jury.
    Blandy, Mooney & Shipman (Lawrence A. Sullivan, of counsel), for appellant.
    Henry Fluegelman, for respondent.
   Per Curiam.

The plaintiff has recovered judgment for damages caused by the alleged negligence of the defendant in blasting out rock for a trench. The plaintiff at the trial showed that a water pipe leading into his house was broken by the falling in of a large section of rock above the pipe. It is fairly inferable that the solid rock above the pipe was broken by a blast set off by the defendant’s workmen, but the record is absolutely void of any evidence that the defendant was negligent in the blasting operations. The plaintiff now claims that we should affirm the judgment regardless of the form of pleading because he has proven without objection that his pipe was broken through the fall of a rock caused by the explosion and that the defendant is liable on the theory of trespass.

The fault in this contention lies in the fact that the issue of trespass was not actually litigated and that the evidence of the falling of the rock was merely incidental to statements' of witnesses as to the condition of the broken pipe. The defendant is liable for trespass if the rock was hurled upon the water pipe, but he is not liable if the rock fell merely from concussion and not as a direct result of the blast. This distinction is clearly pointed out in the case of Derrick v. Kelly, 136 App. Div. 433, which explained and limited the earlier case of Wheeler v. Norton, 92 App. Div. 368. In the case before us we cannot tell whether the break in the solid rock was the direct result of or merely consequential damage from the explosion.

Judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Gtegeeioh, Lehman and Pendleton, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  