
    Josephine Pozepka, Pl’ff, v. American Glucose Company, Def’t.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed January 15, 1895.)
    
    Pleading—Negligence.
    A complaint, in an action for the death of plaintiff’s intestate caused by the burning of defendant’s building in which said intestate was at worb, which 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 that by reason of the defective insulation, the wires conducting the electrical current to the electric lights set fire to the woodwork, and further alleges that the fire .and the burning of the building were due wholly to the carelessness of the defendant, sufficiently states a cause of • action for negligence, which is not rendered bad by an averment of negligence on the part of defendant’s employes in not attempting to put out the fire.
    
      Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
    
      Ullman & Ullman, for pl’ff; Rogers, Locke & Milburn (L. L. Babcock, of counsel), for def't.
   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, add 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, were 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. Their 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 laid down in Ring v. City of Cohoes, 77 N. Y. 83, the defendant would still be liable. Ehrgott v. Mayor, etc., 96 N. Y. 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-employes, 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. Railroad 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 20 days on payment of costs.

Titus, C. J.

(concurring).—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 negligence of the defendant’s employes, while it may be a harmless surplusage, adds nothing to the charge of negligence against the defendant in causing the fire. Heither does it exculpate it from the consequences of such negligence,' because the neglect of the employes to put out the fire, while it may have prevented the serious consequences which followed, was not the proximate cause of the intestate’s death. In Pauley v. Steam, Guage & Lantern Co., 131 N. Y. 90; 42 St. Rep. 636, no claim was made that the fire was occasioned by any act or omission of the defendant, nor was it in any manner the product or result of its fault or 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. 20 days, on payment of the costs of the demurrer.

White, J., dissents.  