
    Salomon Landau, as Administrator, etc., of George Landau, Deceased, Respondent, v. The City of New York, Appellant.
    
      Failure to enact or enforce ordinances—repeal thereof—liability of a city in respeet tliereto and for the acts or omissions of the police — effect of the suspension of an ordinance relating to the use of fireworks in New York city — hilling of. one
    
    
      - in the street by a premature explosion —proof that no accident had previously happened evidence as to the display being a nuisance.
    
    A city is not liable for a failure to enáct and enforce ordinances, nor for the repeal of any ordinance.
    The suspension of an ordinance does not constitute a license to do the acts prohibited by the ordinance, but merely prevents a prosecution for the penalty imposed by the ordinance during the period of such suspension.
    The passage by the board of aldermen of the city of New York and the approval by the mayor of that city of the following resolution: “ Resolved, that the ordinances relating to the discharge of fireworks in the city of New York be and the same are hereby suspended so far as they may apply to meetings and parades, of political parties or associations during the campaign of 1902; such suspension, however, to continue only until November 10,1902, and to be subj ecfc to such restrictions and safeguards as the Police Department may determine as necessary,” does not render the city liable for the damages resulting from the death of a person, who, while on a public street in said city on November 4, 1902, was killed by the premature explosion of fireworks which were being set off in the street by a political organization, where it appears that, although the resolution ivas transmitted by the city clerk without action on the part of the board of aldermen to the police department, of the city, no one connected with the police department was applied to or gave any permission for the display of fireworks or did anything concerning the matter except to endeavor to regulate the crowd.
    The resolution cannot be construed as conferring authority on the police department to license the display of fireworks during political celebrations, for the reason that it would not be competent for the board of aldermen thus to delegate legislative power, and for the additional reason that this was not the intention of the resolution and was not so Understood by the police department.
    The city is not liable for the acts or omissions of the members of the police force.
    In any event, it is improper for the court to refuse to allow the city to show that similar exhibitions with the same kind of fireworks had been given a great number of times without accident, and to refuse to submit to the jury the question whether the display of fireworks constituted a nuisance.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1903, upon the verdict of a jury for $1,612.26, and also from an order entered in said clerk’s office on the 9th day of June, 1903, denying the' defendant’s motion for a new trial made upon the minutes.
    This is a statutory action to recover for the death of George Landau alleged to have been caused by the negligence of the defendant. On the evening of November 4, 1902, which was election day, the National Association of Democratic Clubs, which had its headquarters at the Hoffman House, had a parade and was celebrating the supposed result of the election by a.display of fireworks on the park side of Madison avenue between Twenty-fourth and Twenty-fifth streets. The decedent was in the neighborhood of Twenty-fourth street and Madison avenue and met his death by an explosion of fireworks which occurred about ten o’clock. On the 21st day of October, 1902, sections 718 and 719 of the revised ordinances of the city of New York, theretofore duly adopted .by the municipal legislative body pursuant to authority granted by the Legislature, were then in force and' provided as follows: ■
    “ § 718. No person shall fire, discharge or set off in the city of New York any rocket, cracker, torpedo, squib, balloon or other fireworks or thing containing any substance in a state of combustion under the penalty of five dollars for each offense. The provisions of this section shall not apply to the grounds at the southeast corner of One Hundred and Twenty-seventh street and Fifth avenue.
    
      “ § 719. No person shall sell, or expose for sale, nor fire, discharge or set off in the city of New York any fireworks called or known by the name of £ snakes’ or 1 chasers,’ or any fireworks called or known by the name of £ double headers,’ nor any fireworks under any other name composed of the same material and of the. same character as those fireworks specified in this section, under the penalty of fifty dollars for each offense, to be sued for and recovered of the person selling or exposing the same for sale, firing off or discharging the same. And in case such person shall be an apprentice, such penalty shall be sued for and recovered of and from the master of such apprentice. In case such person shall be a minor and not an apprentice, the same shall be sued for and recovered of and from the father, or in case of the death of the father, then of and from the mother or guardian of such minor.”
    On the last-named day the board of aldermen adopted a resolution as follows:
    
      “ Resolved, That the ordinances relating to the discharge of fireworks in the City of New York be and the same are hereby suspended so far as they may apply to meetings and parades of political parties or associations during the campaign of 1902 ; such suspension, however, to continue only until November 10, Í902, and to be subject to such restrictions and safeguards as the Police Department may determine as necessary.”
    This resolution was approved by the mayor on the 27th day of October, 1902. Thereafter and prior to the day in question the city clerk, without further action of the board of aldermen, transmitted a copy of this resolution to the commissioner of police, who in turn transmitted a copy to all borough inspectors of police, precincts and squads, with a letter saying that it was transmitted" for their information and guidance. It appears that Inspector Brooks on the night in question had charge of the police in the territory bounded by Twenty-eighth street, Fourth avenue, Twenty-second street and Fifth avenue, consisting of about 700 men. On the previous day the inspector saw an announcement in one of the daily papers of the intended parade and display of fireworks which was to the effect that the fireworks were to be set off from the top of the Flatiron building. On election day he sent a sergeant to obtain more definite information about the parade and fireworks and thus ascertained that the fireworks were to be both on Madison avenue and in front of the Worth monument. It was reported to the inspector about three o’clock in the afternoon that preparations were being made in Madison avenue between Twenty-fourth and Twenty-fifth streets for sending off the fireworks. The inspector had 500 policemen on duty that night in and about Madison square, and he detailed 2-sergeants, 2 roundsmen and 85 of this number to cover Madison avenue between Twenty-third and Twenty-sixth streets with a view to having them regulate and protect the crowd in the vicinity of the fireworks. The fireworks display commenced about nine-twenty p. m., and at that time it is estimated there were about 75,000 people in and about Madison square watching the announcement of election returns and the display of fireworks. The -fireworks consisted of sky rockets, flower pots and bombs. The bombs were fired from mortars by lighting a fuse. Neither the size of the mortars nor the nature nor character of the bombs is disclosed other than that they were of the kind commonly used for such purposes. There were several rows of mortars made of steel tubing. The mortars were in the carriageway of the avenue in rows extending north and south. The longest row appears to have been about twenty-five or thirty feet, and there were five or six shorter rows, covering altogether eight of ten feet in width of the carriageway, commencing at a distance variously given as ten to eighteen feet from the westerly curb. It appears that there was difference in the size of the mortars and that the larger ones rested on the pavement and the smaller ones in barrels of sand. It appears that some considerable time before the accident bombs had been fired from the southerly end of the long row without accident, but when they reached the northerly end there was a premature explosion of some of the fireworks, followed by a general explosion, with great violence, killing and injuring a great many people. The cause of the explosion does not definitely appear. At this time crowds lined both sidewalks and curbs around the fireworks. It appears that the fireworks were obtained from Paine, who has attained a wide reputation with respect to display of fireworks. No one connected with the police department was applied to for or gave any permission for the display or gave' any directions or did anything concerning the same, except in endeavoring to regulate the crowd and keep the people back a reasonable distance.
    
      Theodore Connoly, for the appellant.
    
      Charles Steckler, for the respondent.
   Laughlin, J.:

We are of opinion that the city is not liable for this unfortunate accident. If it had- happened before the municipal legislative body had enacted any Ordinance prohibiting the discharge of fireworks, even though authority to enact such ordinances had been granted by the Legislature, or through its failure to enforce them if enacted, it is clear that there would be no liability. The rule is well settled that a municipality is not liable for its failure to enact or enforce ordinances. (Leonard v. City of Hornellsville, 41 App. Div. 106 ; Griffin v. Mayor, 9 N. Y. 456 ; Lorillard v. Town of Monroe, 11 id. 392; Coonley v. City of Albany, 132 id. 145 ; Stillwell v. Mayor, 49 N. Y. Super. Ct. 360; affd., 96 N. Y. 649 ; Levy v. Mayor, 1 Sandf. 465.) It follows logically that no liability' can be predicated on account of the repeal of an ordinance. An ordinance may be repealed one day and enacted the following day, or a week, or a month, or a longer period later. The suspension of an ordinance is not a license to do the acts previously prohibited, but merely precludes a prosecution for the penalty during the period of such suspension the same in effect as if the ordinance were repealed. As well might it be said" that the failure to enact an ordinance is a license to the public to do all things that might be prohibited by ordinance. The . board of aldermen in enacting the ordinance originally might have excepted the fourth of July from its operation and might have excepted the display of fireworks during political parades or celebrations. Had it been so provided in the ordinance it could not' have been successfully maintained that this constituted a license from the municipality to all inhabitants to set off fireworks on the fourth of July and during political parades and celebrations, making the city responsible for any damages resulting therefrom. The situation would be in that event that the ordinance imposing the penalty and prohibiting the acts on other occasions did not apply on such occasions, and the liability as to such occasions would be the same as if the legislative power to enact ordinances had not been exercised at all. These views are sustained by numerous authorities. (Howard v. City of Brooklyn, 30 App. Div. 217; Boyland v. City, of New York, 1 Sandf. 27; Ball v. Town of Woodbine, 61 Iowa, 83; Lincoln v. Boston, 148 Mass. 578; Robinson v. Greenville, 42 Ohio St. 625; Borough of Norristown v. Fitzpatrick, 94 Penn. St. 121; McDade v. Chester City, 117 id. 414; O’Rourke v. City of Sioux Falls, 4 S. D. 47; Mayor & Council of Wilmington v. Vandegrift, 1 Marv. [Del.] 5 ; Wheeler v. City of Plymouth, 116 Ind. 158 ; Kelley v. City of Milwaukee, 18 Wis. 83 ; Hill v. Board of Aldermen of Charlotte, 72 N. C. 55.)

Nor can it be successfully maintained that the board of aldermen authorized the police to license the display of fireworks during political celebrations. It would not be competent for the board of aider-men to thus delegate legislative power; nor was this the intention of the resolution suspending the ordinance in the particulars specified. The reference to the police department was made so that the members of the police force would understand that the board of aldermen did not intend by the action taken to interfere with the exercise of such authority as was invested in the police department, or possessed by the peace officers, to preserve law and order and prevent the destruction of life and property. The police officers were left in precisely the same condition concerning the display of fireworks on the night in question as if no ordinance- had ever been enacted on the subject. Under their general police powers they were authorized to prevent the doing of an act in a public street dangerous to life or property; and to prevent this display of fireworks if in them opinion the same would constitute a nuisance or was likely to injure life or property. It does not appear that the police misunderstood the action of the board of aldermen in this regard — but of course that could not affect the liability of the city — for they did not assume to license or permit this display of fireworks. Of course the city is not liable for the acts or omissions of the members of the police force.

A fair test for determining whether there was a license from the city is to inquire whether if the members of the police force had attempted to prevent a discharge of the fireworks which was dangerous to-human life, those in charge could have presented any license or authority from the city for the acts which they were about to perform. In the case at bar, manifestly/they could not. The case is entirely unlike that of Speir v. City of Brooklyn (139 N. Y. 6), where the city was held liable for damages caused by a fire started by fireworks,, discharged under a special license from the mayor, granted pursuant, to the terms of an ordinance which prohibited the discharge of fireworks without such a license. In that case the legislative body, after determining that, the discharge of fireworks was dangerous, and prohibiting it under a penalty, assumed to license such dangerous acts on special application. Here there was no license to any of the residents or sojourners in this city. The city did not assume to permit the discharge of fireworks. It merely withdrew the penalty in certain instances for a specified period, leaving every individual or organization to the responsibility for his own acts in discharging any kind of fireworks. It did not assume to determine-that a particular place was safe for the discharge of a particular-kind of fireworks. It did not approve as safe the discharge of any kind of fireworks. ' It doubtless was not anticipated that individuals- or political. organizations would be so reckless as to discharge fireworks of a character endangering life - in public places. It is a-matter of common knowledge that there are many kinds of fireworks that may be discharged without danger to life, and such is-the character of those generally used on these occasions. The principal danger to be apprehended from the discharge of fireworks, and that was intended to be guarded against by the ordinance, was the-destruction of property by fire. It was doubtless expected that-with greater vigilance on the part of the police force on these special occasions the danger to property might be minimized and the members of a political party or organization be permitted to-show their enthusiasm in an innocent way by the discharge of ordinary harmless fireworks. It being evident that all of the material facts upon which a liability could be predicated are before us, we have deemed it proper to express our views upon the merits of the case. But the judgment would have to be reversed in any event on account of an exception to the exclusion of evidence that similar exhibitions with the same kind of bombs had for a great many years been given several nights a week at Manhattan Beach without accident, and also to the court’s refusal to submit the question to the jury as to whether this display of fireworks constituted a nuisance. The learned trial judge ruled that the city was liable as matter of law and only submitted to the jury the question of damages. The effect of this ruling was that the mere explosion constituted conclusive evidence that the acts were negligent or constituted a nuisance ])er se. The defendant, in any event, would have been entitled to show the character of the combustibles and the nature of the covering and to show the result of previous experiments with like combustibles in like quantities and casings as bearing on the question as to whether it was negligence to permit the fireworks -to be set off at the place in question or as to whether the city could be charged with permitting the creation of a nuisance. It must be borne in mind that it is not claimed that the city was setting off these fireworks. The claim is that it licensed the political organization to do so.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred ; Patterson, J., concurred in reversal on grounds last stated in this opinion.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  