
    (73 Hun, 576.)
    CAMPBELL et al. v. UNITED STATES FOUNDRY CO.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Damages—Pleading.
    In an action for damages, the complaint need not allege that the acts complained of constituted a nuisance, but it is sufficient to state that “defendant so negligently and carelessly” did the acts as to cause the 'damage.
    Appeal from circuit court, Queens county.
    Action by James M. Campbell and William L. Woodill against the United States Foundry Company to recover damages for the alleged negligence of defendant in setting fire to, and destroying, . plaintiff’s property. From a judgment entered on a verdict in favor of plaintiffs for $2,879.23, defendant appeals.
    Affirmed.
    Argued before DYKMAN and PRATT, JJ.
    Wilson & Wallis, for appellant.
    Henry A. Monfort, for respondents.
   PRATT, J.

This is an appeal by the defendant from a judgment entered on a verdict in favor of plaintiffs, and from the order denying defendant’s motion for a new trial. The action was brought to recover damages sustained by plaintiffs in the destruction of their property by fire occasioned by sparks from the defendant’s foundry. Plaintiffs had a hay and feed store on Division street, Long Island City. The defendant had its foundry about 150 feet west of plaintiff’s store, where it was engaged in the manufacture of weights from tin cans, scraps of tin, and the like. ,For the purpose of smelting, the tin was put into defendant’s furnace, where it was subjected to a strong drought of air and great heat,—some 2,700 degrees. In this way, the metal, when it became molten, fell to the bottom of the furnace, and was then drawn off into molds. Surmounting the furnace was a chimney of boiler iron, 58 feet high, on the top of which, at one time, defendant had placed an iron plate, with holes, or iron netting, for the purpose of arresting the sparks. This spark arrester had become dilapidated, and was not in use at the time of the fire. It was shown on the trial that on two or three occasions the sparks from defendant’s chimney, which were described as red-hot, and from one to two inches square, had fallen on paper or hay on the plaintiff’s premises, and ignited them. At the time of the fire, Mr. Campbell and one of his men were engaged in loading hay. A strong wind was blowing from the west, and Mr. Campbell testifies that he saw sparks coming from defendant’s foundry, which lighted on and in their building; that they stamped out what sparks they could, but that the hay in the building took fire, and they were unable to extinguish it, and the loss complained of occurred. There was some conflict of evidence, but the question of the origin of the fire—whether from sparks from defendant’s chimney or not—was one of fact, and properly left to the jury to decide. It is quite immaterial on which ground the jury held the defendant liable, whether from negligence in the way it conducted its smelting, or because its methods created a nuisance. There was evidence that appliances for arresting sparks were used, and, when used, prevented sparks from escaping from chimneys like defendant’s; that defendant had at one time used one on its chimney, but did not use it at the time of the fire. If the jury believed this evidence, a clear case of negligence was proven. But suppose the contention of the defendant be true, —that it was impossible, by reason of the great heat, to maintain a spark arrester on top of its chimney. The case then becomes one of nuisance. The law as to damages resulting from nuisances is well settled:

“Where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies.” Opinion of Judge Brown, Bohan v. Gaslight Co., 122 N. Y. 26, 25 N. E. 246.

The evidence clearly shows that the defendant maintained a nuisance in conducting its business at the time of the fire. We. know of no rule of pleading which requires a complaint in an action for damages to allege as a fact that the acts complained of constituted a nuisance. It is sufficient, as alleged in the complaint in this action, to state that “the defendant so negligently and carelessly” did those acts as to cause the damage.

The defendant excepted to the admission of evidence to the effect that sparks had been emitted from its chimney since the fire. That ruling was a proper one. Plaintiffs had proven that the chimney was in the same condition as before the fire. This is the only exception that seems to require any comment.

The charge of the trial judge correctly stated the law, and his disposition of the defendant’s requests to charge was as favorable to the defendant as it could have expected. The judgment and order appealed from should be affirmed, with costs.  