
    George Ricker, Appellant, v. John B. McDonald, Defendant, Impleaded with May L. Shaler, as Administratrix, etc., of Ira A. Shaler, Deceased, Respondent.
    
      Use of dynamite in the construction of a tunnel in Sew York city under chapter 4 of the Laws of 1891 — liability of a contractor using an amount in excess of that authoi'ized by the city authorities — it is a nuisance at common law.
    
    In an action brought against the contractor for the construction of the rapid transit tunnel in the city of New York and a sub-contractor to recover damages for the destruction of certain chattels belonging to the plaintiff’s assignor, in consequence of t*he explosion of a quantity of dynamite in excess of the amount permitted by the city authorities, which the sub-contractor had stored upon the line of the work, the sub-contractor interposed a defense based upon chapter 4 of the Laws of 1891, as amended, creating the rapid transit commission and giving the commissioners power to do all things necessary to carry out the work, but which contains no specific authority for using or storing dynamite upon the line of the work in quantities exceeding that permitted by the laws, ordinances and regulations of the city.
    
      Held, that the defense was demurrable;
    That the keeping of upwards of 100 pounds of dynamite upon the line of the work was a nuisance, both at common law and under the provisions of section 763 of the city charter (Laws of 1897, chap. 378).
    Appeal by the plaintiff, George Ricker, from an interlocutory judgment of the Supreme Court in favor of the defendant May L. Shaler, as administratrix, etc., of Ira A. Shaler, deceased, entered in the office of the clerk of the county of Queens on the 23d day of February, 1903, upon the decision of the court, rendered after a trial at the Queens County Special Term, overruling the plaintiff’s demurrer to the second separate defense in the respondent’s amended answer.
    
      Jacob Friedman, for the appellant.
    
      Charles P. Howland, for the respondent.
   Woodwabd, J.:

• The plaintiff, as assignee of a claim belonging to one Pettingill, brings this action to recover damages for the destruction of certain chattels belonging to the said Pettingill by the explosion of dynamite stored for the purpose of use in the rapid transit subway in the city of New York. The complaint alleges that John B. McDonald entered into a contract for the construction of a tunnel under various streets in the city of New York, and that he sublet a portion of this contract to Ira A. Shaler; that the said Shaler in prosecuting this work employed a large quantity of dynamite in blasting, and that at the time of the said explosion and for some time prior thereto he wrongfully and Unlawfully kept at Park avenue and Forty-first street a large quantity for such use in such construction, to wit, one hundred pounds and upwards, which quantity was greatly in excess of the permit for the use thereof issued to the said Shaler by the fire department of the city of New Y ork, which said permit allowed said Shaler to keep fifty pounds of dynamite and no more, and that said permit was the only one issued to the defendant, etc. The answer sets up as a second separate defense that under the provisions of chapter 4 of the Laws of 1891, as amended, creating the rapid transit commission, the commissioners were given full authority to determine upon the location of the rapid transit railway, and all matters connected therewith; and that they were given power to do all things necessary for the purpose of carrying out these powers; that the use of dynamite in blasting being necessary to the work, the storing of this dynamite in a populous section of the city, contrary to the provisions of the permit issued to Shaler, was authorized by the statute, and that, therefore, the plaintiff must bear his loss without remedy. The plaintiff demurs to this second defense upon the ground that said alleged defense is insufficient in law upon the face thereof. The learned court at Special Term overruled this demurrer, .and the plaintiff appeals from the interlocutory judgment entered upon the decision.

As we read the provisions of chapter 4 of the Laws of 1891, as, amended, it is a permissive statute, giving a general power to the board of rapid transit commissioners to determine upon the necessity of a rapid transit railway, and generally to do all things necessary to carry out the work, but we nowhere find any specific authority for using or storing dynamite in the heart of a great city, contrary to the laws, ordinances and regulations of such city. Permission to do a thing is not a direction, and a legislative permission neither implies a right to appropriate property without compensation, nor confers a license to commit a nuisance. To base upon a legislative grant of power to do a thing an immunity from consequences, which deprive, or tend to deprive, a person of that which is his property, there should, at least, be found a direction which is clear and quite unmistakably imperative. (Sammons v. City of Glovers-ville, 175 N. Y. 346, 352, and authorities there cited.) In Cogswell v. N. Y., N. H. & H. R. R. Co. (103 N. Y. 10, 24) the court cites- and approves an English case (Metropolitan, Asylum District v. Hill, 6 App. Cas. 213), in which it is said : “ Where the terms' of the statute are not imperative, but permissive, when it is left to-the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the Legislature intended that discretion to be exercised in strict conformity with private rights,, and did not-intend to confer license to commit nuisance in any place which might be selected for the purpose.” The Cogswell Case (supra,) is cited by the court in Sammons v. City of Glovers-ville (supra), and it may be accepted as the law of this State. There is no doubt that the keeping of this amount of high explosive in the city of New York is a nuisance both at common law and under the provisions of the charter (Laws of 1897, chap. 378, § 763), and as-the provisions of chapter 4 of the Laws of 1891, as amended, did not specially authorize the use,of explosives or the keeping of them in quantities in excess of that allowed by the municipal authorities, it can afford no defense in this action, where the complaint alleges an actual trespass upon the property of the plaintiff’s assignor. The gravamen of the action is the nuisance committed by the original defendant, Ira A. Shaler, who has since died, the action being-continued against this administratrix, May L. Shaler, and it' cannot be defeated under the allegations of the second defense.

The interlocutory judgment and order appealed from should be; reversed, with costs, and the demurrer sustained, with costs.

Goodrich, P. J., Bartlett, Hirsohberg and Hooker, JJ.,, concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs.  