
    Edward F. Murphy, as Sole Surviving Executor of and Trustee under the Last Will and Testament of Hugh Smith, Deceased, Appellant, v. The City of New York and Others, Respondents.
    First Department,
    November 6, 1908.
    Municipal corporations — negligence — explosion of dynamite used by sub-contractor — when contractor not liable for tort or nuisance of sub-contractor.
    The city of New York is not liable for damage to property caused by the explosion of dynamite used by a sub-contractor in constructing the rapid transit subway, even though the sub-contractor had a permit from a fire commissioner to store dynamite in the street.
    Assuming that said fire commissioner had authority to issue such permit (as to which qumre), the principal contractor is not liable for injuries caused by the explosión of dynamite, where the amount stored by the sub-contraetor was largely in excess of the amount authorized by his- permit and the sub-contract did not specifically require the use or storage of dynamite.
    Although a contractor is liable for the acts of his sub-contractor where the work of itself is a nuisance, the building of a subway authorized by- statute is not a nuisance, and although the sub-contractor maintains a nuisance by storing' an inordinate quantity of dynamite in the streets, and in failing to take proper precautions to prevent its explosion, the contractor is not liable.
    Patterson, P. J., dissented in part.
    Appeal by the plaintiff, Edward F. Murphy, as- executor, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of. New York, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the complaint.
    
      Herbert C. Smyth, for the appellant.
    
      De Lancey Nicoll, for the respondents McDonald and Rapid Transit Subway Construction. Company.
    
      Theodore Connoly, for the City of Yew York.
   Scott, J.:

This is an action against the city of New York and the contractors for the construction of the rapid transit subway, for damages to plaintiff’s property resulting from an explosion of dynamite in the excavation in Park avenue during the course of construction.

The facts presented by the record did not differ in any important particular from, those presented and considered in Carpenter v. City of New York (115 App. Div. 55.2) wherein we had occasion to consider the liability of the city of New York for an injury to the plaintiff in that case, caused by the same explosion, The only substantial difference between thisucase and that is that in the Carpenter case it did not appear that the sub-contractor engaged in doing the work had obtainéd any permit or license from the city of Yew York or any municipal authority to erect or maintain a magazine or keep explosives in it. This fact was referred to in the former opinion, not as decisive of the case, but as distinguishing it from Landau v. City of New York (180 N. Y. 48) and Speir v. City of Brooklyn (139 id. 6). The evidence tended to show that the sub-contractor was in the habit of keeping a very large, amount of dynamite, estimated at several hundred pounds, in the excavation in front of plaintiff’s premises, and that the explosion which caused the damage complained of involved at least 200 pounds of the explosive. In the present case it was shown that the lire commissioner of the city had issued a permit to the sub-contractor to use and keep not exceeding 50 pounds of dynamite in a hand magazine for blasting purposes in Park avenue, between Thirty-seventh and Forty-first streets. We are not aware of any statute or ordinance, and' we have been referred to none, which authorized the fire commissioner, on behalf of the city of New York, to grant a permit for the storage of the amount of dynamite mentioned in his permit. It is not important, however, to consider that question, for the permit, at most, provided only for the storage of 50 pounds, and the accident concededly involved a very much larger quantity than that. For all that appears, if the sub-contractor had limited himself to keeping on hand only the amount of dynamite specified in the permit, no explosion would have occurred. We do not consider, therefore, that the evidence as to the issuance of the permit affects the liability of the city in any way, and for the reasons stated at some length in the Carpenter Case (supra) we are of opinion that the complaint was rightly dismissed as against the city of New York. The defendant McDonald was the original contractor for the construction of the whole Rapid Transit railway, which included that portion thereof in which the explosion occurred. He sub-let on September 4, 1900, to one Ira A. Shaler a section of the work extending from Thirty-third street to Forty-first street on Park avenue. • It was Shaler who kept and stored the dynamite which exploded, and the explosion occurred within the limits of the section sub-let to him. The defendant Rapid Transit Subway Construction Company entered into a contract with McDonald whereby it agreed to finance the work undertaken by him, and to receive and disburse the moneys to be paid to him under the contract. We have, therefore, presented the familiar case of an . accident resulting from the fault or negligence of a sub-contractor in carrying out the work intrusted to him. It is well settled that in such a case, unless there be exceptional circumstances present, the original contractor is not liable for the tort of his sub-contractor. The plaintiff seeks to avoid the' operation of this rule by insisting that the act of Shaler in keeping on storage so large a quantity-of dynamite constituted a nuisance; that the work sub-let to him necessarily and notoriously would require the use of lErge quantities of dynamite or some other high explosive, and, therefore, that McDonald must be deemed to have contracted with Shaler that the latter should maintain a nuisance. There is no doubt that where the work contracted for will itself constitute a nuisance, the principal as well as the contractor becomes liable for the damages resulting therefrom, but this rule does not apply when the nuisance lies not in the work contracted for, but in the means adopted by the contractor for carrying out the work. What McDonald contracted for with Shaler wr.s that the latter should excavate a tunnel, which was fully authorized by law and would not in itself constitute a nuisance. The nuisance, if there was one, consisted in one of the means adopted for carrying out the work, viz., in storing along the line of the work an inordinate quantity of dynamite, and failing to take proper precautions to prevent its explosion. This was not provided for in the contract between McDonald and Shaler, nor necessarily involved in the execution' of the contract. There is, therefore, no ground for charging McDonald or the contracting company with the consequences of Shaler’s acts in that regard.

We are of the opinion that the complaint was also rightly dismissed as to the defendants McDonald and the Rapid Transit Subway Construction Company. The judgment should be affirmed, with costs.

Ingraham, Laughlin and Clarke, JJ., concurred; Patterson, P. J., dissented as to the city of New York.

Judgment affirmed, with costs. Settle order on notice.  