
    Rosa Schuck, as Administratrix, Etc., of George Schuck, Deceased, Plaintiff, v. Thomas F. Main and William V. V. Powers, John McKesson, William H. Wickham, George McKesson and Herbert R. Robbins, Composing the Firm of McKesson & Robbins, Andrew B. Rogers and Runyon Pyatt, Composing the Firm of Rogers & Pyatt, Defendants.
    (Supreme Court, New York Trial Term,
    November, 1902.)
    Nuisance — Action for a death from an explosion of chemicals resulting from a fire — Proximate cause where there are several independent (defendants.
    Where an administratrix sues in one action two independent firms for causing the death of her intestate as alleged by the maintenance of a nuisance consisting in the storage in a city of chlorate of potash, sulphur, nitrates of strontia and barium, which a fire exploded, and the proof on the trial is that the two firms and another firm not made a party to the action were occupants of a seven-story building, that they stored their property on various floors not indicated separately as to each firm by the proof, that all stored chlorate of potash — a substance which the jury might have found to be an “ explosive compound " and forbíddén by the charter to be stored within the city except under certain restrictions as to place and quantity — that a fire occurred in the building and that a quarter of an hour later there were three successive explosions, she cannot recover at all, whether or not the storage was unlawful, where she makes no proof as to the order, in time, in which the goods of the several firms exploded, nor any proof that the goods of either of the defendant firms were the proximate cause of or contributed to the death of her intestate, or how he came to his death.
    Motion to dismiss complaint.
    Jacob Friedman (Robert A. Stewart, of counsel), for plaintiff.
    Agar, Ely & Fulton (Alfred Ely and Louis M. Fulton, of counsel), for defendant Main.
    Latson & Bonynge (Almet R. Latson, of counsel), for defendants Rogers and Pyatt.
    Thomas N. Cuthbers (Almet R. Latson, of counsel), for defendants McKesson and Robbins.
   Freedman, J.

I have carefully considered the several points made on the motion to dismiss, and upon them have come to the following conclusions:

The plaintiff claims that the action is brought for the maintenance of a nuisance causing the death of plaintiff’s intestate, and not for negligence.

There was a fire which, after the lapse of some fifteen, twenty, or twenty-five minutes, was followed by three explosions. The nuisance complained of consists in the storage of the aritcles which the fire caused to explode, the articles complained of consisting of chlorate of potash, sulphur, nitrates of strontia, and barium. They are commercial articles, and none of them is shown to contain within itself such a well-known explosive character as is contained in powder, nitro-glycerine, gunpowder, etc. The doctrine of the Powder-houses Cases, therefore, does not apply.

I am also of the opinion that the common law applicable to the maintenance of a nuisance is available to the plaintiff only so far as it has been reinforced in this State by the fire laws of this city. The storage of combustibles and explosive articles in this city is regulated by the charter of Greater New York, which prohibits certain things directly, and forbids others unless a permit is obtained from the fire department. The provisions of the charter upon this point are police regulations in prevention of a nuisance. How, the only provisions of the charter applicable to the case at bar are contained in section 7 64, and they are to the effect, first, that no explosive compounds shall be stored or kept for sale in the city, except at such places, in such, manner, and in such quantities as shall be determined by the fire commissioner in the exercise of his discretion, under a permit by him granted therefor, subject to be revoked at any time by said commissioner; and secondly, that no greater quantity of sulphur shall be stored or kept in or upon any one building within the city than 1,000 pounds, except the same shall be stored and kept in such building and manner as said commissioner may require under a special permit by him issued therefor. How, the defendants, McKesson & Robbins, are chargeable upon their admissions contained in their proofs of loss, with having had in storage in the building in question 3,920 pounds of chlorate of potash, 52,394 pounds of sulphur, 21,234 pounds of nitrate of strontia, and 6,600 pounds of nitrate of barium. But this admission was not followed up by the testimony of a witness sworn upon this trial, and, therefore, is not evidence against the other defendants. So the defendants constituting the firm of Rogers & Pyatt are chargeable upon their admissions contained in their proofs of loss with having had on storage in the building in question 72,128 pounds of chlorate of potash, but as this admission was not followed up by the testimony of a witness sworn upon this trial it is not evidence against the other defendants. The consequence is that as to the defendant Main, 'there is no evidence that McKesson & Robbins or Rogers & Pyatt had anything on storage, nor is he shown to have had actual knowledge or notice of the storage of combustibles or explosives by any other merchant or firm. On the contrary, the evidence produced by the plaintiff and by witnesses whom the plaintiff introduced as entitled to belief throughout, is that he had nothing to do with the storage department of Tarrant & Company, though he was president of the corporation. There is not sufficient evidence to connect him individually with participation in the maintenance of a nuisance. If the action were for negligence, a different case would be presented. So, if the action were against the corporation, a different case would be presented. But the corporation that controlled the building and did the storage business therein was not made a party to this action. As against the defendant Main, therefore, the complaint must he dismissed. As against the defendants constituting the firms of McKesson & Robhins and Rogers & Pyatt the case is different, hi either firm knew what the other had done, and, therefore, is not responsible for the acts of the other. Each firm had on storage a large quantity of chlorate of potash. As to that article, at least, the state of the evidence is of such a character as to present a question of fact to be determined by the jury, namely, was it an explosive compound within the meaning of that term as used-, in section 764. If it was such an explosive compound, its storage contrary to the fire laws was unlawful. The permit shown by the plaintiff to have been possessed by the corporation of Tarrant & Company did not authorize its storage. Eor the reasons already stated; it is not necessary to say anything at present concerning the other articles stored by the defendants. If, therefore, there were no defect elsewhere the case would have to go to the jury. But in order to recover, the plaintiff must establish as part of her case that the deceased met his death by reason of an explosion of the goods of the defendant sought to be held liable. There is not a particle of evidence in this case as to where, on any of the seven stories of the building, the goods of the two firms were stored, but there is evidence that at least another firm had equally explosive goods there. There is not a particle of evidence as to which goods-exploded first. If the goods of the third firm, not a party to this action, exploded first and killed the deceased, the defendants now here would not be liable, except upon proof that their goods contributed to his death. So, if the goods of one of the defendant firms exploded and killed the deceased before the goods of the other exploded, the other would not be held liable. So, if the deceased was killed in some other way than by an explosion, the defendants now here would not be liable. The result of all this is that upon the point that the. proximate cause of the death of the deceased must be shown to have been an explosion to which the particular goods of the defendants now here contributed, there is a vital defect of proof, which under the authorities is ground for a dismissal. The complaint must, therefore, be dismissed.

Complaint dismissed.  