
    Julyana Pzepka, as Administratrix, Plaintiff, v. The American Glucose Co., Defendant.
    (Superior Court of Buffalo — General Term,
    January, 1895.)
    A complaint in an action for the death of plaintiff’s intestate, which was caused by the burning of the building in which he was at work for the defendant, alleged that the fire originated in the dynamo room by reason of defects in the appliances and machinery, and that by reason of defective insulation the wires set fire to the woodwork, arid further alleged that the fire and the burning of the building was due wholly to the carelessness of the defendant. Held, that such allegations made out a cause of action for negligence against the defendant, and that the same was not weakened by the further allegation of .negligence of its employees in failing to attempt to put out the fire. ‘
    In such an action it is proper to allege and prove that the windows of the room in which the decedent was at work were screwed down.
    White, J., dissents.
    Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
    
      Ullmcm & UThncm., for plaintiff.
    Rogers, Locke <& Milhurn {L. L. Babcock, of counsel)^ for defendant.
   Titus, Ch. J.

The defendant demurs to the plaintiff’s complaint. The complaint alleges that the fire through which the plaintiff’s intestate was killed originated in the dynamo room of the defendant’s building by reason of defects in the appliances and machinery operated therein, and that by reason of defective insulation the wires set fire to the woodwork.

In paragraph 4 it is alleged that the taking fire of said building and burning thereof was due wholly to the carelessness and negligence of the defendant.” It then describes the building and room in which the intestate worked and alleges 'that the windows were screwed down, and that after the fire occurred it might easily have been extinguished by the men employed in the engine room, and other facts in detail.

- We think there is clearly a specific allegation of the negligence of the defendant in not properly attaching the electric wires and in their faulty and defective insulation. The negligence in this case is predicated wholly upon the defective construction and attachment of the machinery and appliances and is a sufficient charge of negligence to maintain the action.

The description of the room in which the intestate worked, and the fact that the windows were screwed down, are proper allegations in the complaint and competent to be shown upon the trial, but the allegation of the negligence of the defendant’s employees, while it may be a harmless surplusage, adds nothing to the charge of negligence against the defendant in causing the fire, neither does it exculpate it from the consequences óf such negligence, because the neglect of the employees to put out the fire, while it may have prevented the serious consequences which followed, was not the approximate cause of the intestate’s death.

In Pauley v. Lantern Co., 131 N. Y. 90, no claim was made that the fire was occasioned by any act or omission of the defendant, or was it in any manner the product or result of its fault nor negligence, and the court held that no negligence was shown against the defendant.

Here the complaint charges direct and specific negligence against the defendant, which clearly distinguishes it from that case.

We think the demurrer must be overruled and judgment ordered for the plaintiff, with costs, with leave to the defendant to answer within twenty days on payment of the costs of demurrer.

Hatch, J.

The complaint alleges that the fire originated in the dynamo room of the structure burned, by reason of defects in the appliances and machinery operated therein and by reason of the defective insulation of the wires conducting the electrical current to the electric lights, by reason of which defects the woodwork of said dynamo room was set on fire. This is the only fire alleged to have been started, and it resulted in the destruction of the building. This is followed by a separate allegation that the taking fire of the building and the burning was due wholly to the carelessness and negligence of the defendant. The latter is not to be treated as a separate general allegation of negligence independent of the facts before alleged. The facts are stated showing how the fire originated, and the allegation of negligence is of that fire; consequently such allegation applies to the specific acts alleged and characterizes them as negligent. There was but one fire, and its manner of starting is stated; it resulted in the destruction of the building from which the injury was sustained; the fire was, therefore, the direct and proximate cause of the injury. The allegation of negligence on the part of the engineers does not negative the allegation of negligence as to the cause of the fire. There was no failure of duty on their part which caused the fire to start; they simply made no attempt to put it out when they might have done so. Then failure in this regard, even though it be called a proximate cause of the burning, does not aid defendant, for it would then be only one of two proximate causes, and within the rule down in Ring v. City of Cohoes, 77 N. Y. 83, the defendant would still be liable. Ehrgott v. Mayor of N. Y., 96 id, 283.

The fact is not changed that the fire originated from the negligence of defendant. The case as thus presented by the pleading shows that the fire was caused by the negligent acts of the defendant and was the proximate cause of the injury ; that the negligence of the co-employees in failing to put the •fire out was at most concurrent with the negligence of. defendant. But the latter fact does not render the pleading bad, as such negligence does not exonerate the defendant for its acts of negligence. Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546.

The pleading is inartificially drawn, but a cause of action is sufficiently well stated to resist a demurrer.

Judgment should, therefore, be ordered for the plaintiff on the demurrer, with costs, with leave to ■ the defendant to answer within twenty days on payment of -costs.

White, J., dissents.

Demurrer overruled and judgment ordered for the plaintiff, with costs, with leave to defendant to answer within twénty days on payment of costs.  