
    Morris Littman, as Executor of and Trustee under the Last Will and Testament of Aaron Asher, Deceased, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Negligence — explosion of gas in the cellar of a house occurring after a jet of escaping-gas was ignited on a sidewalk — burden of proof.
    
    In an action brought against the city of New York, to recover the damage occasioned to a house of which the plaintiff was in possession and in the alleged, control, it appeared that in making a connection between a drain pipe on the • premises and the sewer in the street, a tunnel had been cut from the cellar of the house to the sewer pipe, the surface of the street and sidewalk not being disturbed; that a day or so later a serious escape of illuminating gas was observed, of which information was sent to the department of public works; that one of the employees of the water purveyor’s department, in searching for the leak, • moved a lighted piece of paper along the surface of the sidewalk, which ignited a jet of escaping gas; that an attempt was then made to extinguish the flama by covering it with earth or dirt, and that five minutes afterwards an explosion, occurred in the plaintiff’s premises, caused, it was claimed, by the flame being-carried through the tunnel from the street into the cellar, where the gas had accumulated.
    
      ■Held, that, in the absence of evidence that the defendant’s employee had notice of the condition of the plaintiff’s premises or of the street and sidewalk under the surface, or that his mode of conducting the examination was unusual or unreasonable, negligence was not established from the mere fact of the explosion;
    That the burden of proof .was not upon the defendant to show that the method pursued by its servant was a proper and reasonable one.
    Appeal by the plaintiff, Morris Littman, as executor of and trustee under the last will and testament of Aaron Asher, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of May, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Hew York Trial Term.
    
      Edward Jacobs, for the appellant.
    
      Theodore Connoly, for the respondent.
   Patterson, J.:

The plaintiff, as executor and trustee, being in possession and having the control of two certain houses situate in Thirty-ninth street in the city of New York, brought this action against the defendant, claiming that its servant, acting by its direction and under its authority, negligently caused an explosion of gas to take place, in consequence of which serious damage was done to such houses. On the trial the plaintiff was nonsuited, and from the judgment entered thereupon this appeal is taken. .

We shall assume for all the purposes of this appeal that the allegation of the complaint was established; that the servant of. the city was acting within the scope of his authority. The proof, however,, was insufficient to charge him with negligence in the performance of the duty with which, we assume, he was charged when the explosion occurred. The evidence showed that, fór a day or so before the explosion, a plumber was at work in and about the premises of the plaintiff. He was making a connection between the drain pipe in one of the houses and the sewer in the street.. To make that connection a tunnel was cut from the house to the sewer pipe, but that tunnel or trench, as it was called, was all underground, so that the surface of the pavement was not disturbed. “ Neither the sidewalk nor the paving- ston'es-of the street -were «dug. up ;. it was all .underground connection.” The opening of the tunnel came into the cellar of one of the houses mentioned in the complaint. Early on the morning of October 2, 189'5, a very serious escape of illuminating gas was-observed. The police were notified, and information was sent to the department of public works of the city of New York. One of the employees of the water purveyor's department came upon the scene to search in the street and upon the sidewalk, to ascertain if there were a leak' in the highway. To make his examination he lit a piece of paper, and moving it along the surface of the sidewalk it ignited a jet of escaping gas and it was thus ascertained that there was a leak in the highway. When that discovery was made and the leak located, an attempt, was made to extinguish .the flame, by covering it with earth or dirt. Four or five minutes afterwards the explosion occurred in the'plaintiff’s premises. It is claimed that it is to be inferred that the flame started in the street by the .defendants’ servant, was carried through the tunnel into the cellar, thus causing an explosion of gas accumulated in the cellar. .

There is nothing in the evidence to show that the defendants’ servant had knowledge or notice in any way of the condition of the plaintiff’s premises or of the condition in which the plumber had put the street and sidewalk under the surface. Nor is there anything to show that the act of the servant in using a lighted- paper as he did, was not the usual, ordinary and reasonable way in which to make examinations for leaks of gas pipes in the street; nor that there was any other or different method he might have .pursued to ascertain .where the leak-was. From all that appears he was wholly ignorant of any other fact or circumstances in connection with the situation at the place and at the time, than that there had been a very serious escape.of gas near the premises, and that it was his duty to find out whether the highway was affected by it.

Before negligence could be charged to him, it was necessary to prove that he had done something unusual, unnecessary or improper under the circumstances. He was not bound to know that a concealed subterranean communication had been made between the pipe system under the highway and the cellar of the plaintiff’s premises. Nor was the burden of proof upon the city to show that the method pursued by its servant was a proper and reasonable one. Negligence-.is'-not established-from the mere fact/.of the ..happening of the explosion. In this case the relation of cause and effect did not prove it. Negligence in-the act constituting the cause is the gravamen of the action, and that negligence was not shown.

The complaint was properly dismissed and the judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  