
    Alfred W. Babcock, an Infant, by Jennie Babcock, His Guardian ad Litem, Appellant, v. Simon E. Fitzpatrick et al., Doing Business under the Name of J. J. Fitzpatrick & Son, Respondents.
    
      Negligence — nuisance — proximate cause — dynamite caps left by defendants’ employees under porch, of house and carried away by nephew of occupant — plaintiff injured while exploding one — act of defendants’ employees in leaving caps not proximate cause of injury.
    
    
      Babcock v. Fitzpatrick, 221 App. Div. 638, affirmed.
    (Argued June 1, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered November 21, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of and maintenance of a nuisance by the defendants who were contractors engaged in laying a water pipe line. In the course of the work defendants’ employees stored some tools under the porch of an adjoining house, and it becoming necessary to blast nearby, a box containing dynamite percussion caps was left there. A nephew of the occupant of the house, about eleven years of age, found the box and joining some other boys, amongst whom was the plaintiff, a boy twelve years of age, they went to a deserted pier and tried to explode the caps. Plaintiff succeeded in exploding one and as a result had some of his fingers blown off. The Appellate Division held that, assuming the placing of the caps under the porch to have been wrongful, it was not the proximate cause of the plaintiff’s injuries.
    
      Walter A. Fullerton for appellant.
    
      Hugh, Reilly for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  