
    George Reider, an Infant, by Samuel Reider, as Guardian ad Litem, Plaintiff, v. The City of Mount Vernon, Defendant.
    Second Department,
    January 30, 1914.
    Municipal corporation—negligence — nuisance—injury by fireworks — authority of mayor to grant permit — question of law—ordinance construed.
    Where, in an action against a city for personal injuries sustained through a premature explosion of fireworks in a public park of the defendant, it was claimed that the mayor had no power to authorize the display of fireworks, the question whether the defendant participated in creating a nuisance,' the only evidence being a written permit under an ordinance, is a question of law.
    Provisions of the ordinance examined, and held, not to confer authority upon the mayor to permit the display of fireworks within the fire limits.
    Motion by the plaintiff, George Beider, an infant, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, after a dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial before the court and a jury at the Westchester Trial Term.
    
      
      Odell D. Tompkins, for the plaintiff.
    
      Frank A. Bennett, Corporation Counsel, for the defendant.
   Stapleton, J.:

There was an order entered in this case directing that plaintiff’s exceptions be heard in the first instance by the Appellate Division, and the exceptions are here to be heard upon amotion for a new trial. The single exception presented is that to the ruling of the trial court granting defendant’s motion for a dismissal of the complaint at the close of plaintiff’s case.

' The action is brought against a municipal corporation, and liability is asserted upon the theory that the defendant created a public nuisance through which the plaintiff sustained personal injury.

The principles of law applicable to the question of liability presented for consideration are well settled, and the justification for this opinion is that one injured in the same casualty having heretofore recovered damages (De Agramonte v. City of Mount Vernon, 123 App. Div. 717), the plaintiff is entitled to know why we distinguish between that case and the one at bar.

In the De Agramonte case, a pedestrian while on a public street, was injured by a fragment of the steel pipe of a bomb which prematurely exploded at a fireworks display in a public park, which display was being conducted by a private organization under a license from the mayor, authorized by an ordinance of the common council. This court held, in the opinion last cited, that it was a question for the jury whether it was not negligence for a city to license and allow a display of fireworks in a public park so close to a public street as to make the exhibition dangerous to persons upon the street as pedestrians and not as spectators of the display. It was assumed in that case that the mayor was authorized to give the license which he gave. In the case at bar the defendant insists that no such authority existed.

The plaintiff here was a spectator at the display of fireworks and was injured through a premature explosion while in Hartley Park, a public place in the city of Mount Vernon.

The plaintiff’s counsel conceded that plaintiff was confined to nuisance as a basis of recovery.

The mayor of the city gave what purported to be a written permit to a social organization for an exhibition of fireworks in Hartley Park on the 2d day of August, 1902. Hartley Park was not in that part of the city known as the fire limits. There was no statute which conferred upon the mayor the power to grant the permit. There was an ordinance of the city under which the mayor assumed to act. That ordinance reads: ‘1 The firing of a gun, pistol, squibs, crackers, gunpowder, or other combustible substance in the streets, or elsewhere in that part of the city known as the fire limits, and the blowing of horns, are hereby forbidden. Provided, however, that this section shall not apply to the firing of crackers or fireworks on the fourth of July, or to the day on which the anniversary of our national independence shall be celebrated, or except by general permission of the mayor.”

The precise question presented for our determination is: Did that ordinance authorize the mayor to grant a permit for firing gunpowder or other combustible substances in a place in the city other than the streets, without the fire limits thereof ? The trial justice held that the ordinance conferred no such authority upon the mayor. I think his construction was the true one. The prohibition was (1) against doing the forbidden thing in the streets; (2) against doing it generally in that part of the city known as the fire limits. This prohibition could be suspended by general permission of the mayor. Against firing gunpowder or other combustible material in places outside of the fire limits other than the public streets, there was no prohibition, and no license was necessary or authorized.

It is essential to the success of the plaintiff to establish that the executive of the city was authorized by statute, or by the governing body of the municipality, acting within the scope of its statutory powers, to permit the doing of an act, dangerous in itself to the extent of constituting a nuisance, thus participating in the creation of the nuisance. (De Agramonte v. City of Mount Vernon, 112 App. Div. 291; Speir v. City of Brooklyn, 139 N. Y. 6; Landau v. City of New York, 180 id. 48.) Whether or not the act complained of by the plaintiff was a nuisance, created, by the persons actually engaged in the explosion of the fireworks, is a question of fact; whether the' municipality participated in it, the only evidence being a written permit under an ordinance, is a question of law. The municipality could he held for the act of its mayor only in case he acted under authority. The ordinance conferred no such authority upon him. The determination of the trial court was correct.

The plaintiff’s exceptions should he overruled and the motion for a new trial denied, and judgment directed for the defendant dismissing the plaintiff’s complaint, with costs.

Present — Jenks, P. J., Burr, Thomas, Stapleton and Putnam, JJ.

Plaintiff’s exceptions overruled, motion for new trial denied, and judgment unanimously directed for defendant dismissing plaintiff’s complaint, with costs.  