
    Annie Walker, Respondent, v. The City of New York, Appellant.
    
      Negligence—injury from fireworks set off on a private lot by express authority of the municipality—when the municipality is liable.
    
    In an action brought against the city of New York to recover damages for personal injuries sustained by the plaintiff, it appeared' that the Tjoard of aider-men of the defendant city passed the following resolution: “ Sesolved, That the ordinance relating to the discharge of fireworks be and the same is hereby suspended, so as to permit a display by the congregation of St. Mary’s Powell Street Church, Borough of Brooklyn, on the north side of Pacific street, about seventy-five feet east of Sackman street, on May 19, 1902, under the direction of the Commissioner of Police.”
    The display, at which a number of police officers were on duty, took place upon a vacant lot which was not fenced in from the street and which was situated in the midst of a number of inhabited houses. The fireworks were set off within the lot as near to the sidewalk as they could be placed. During the display one of the pieces of fireworks exploded from some unexplained cause, and a portion thereof struck and injured the plaintiff, who was seated on the veranda of a house across the street, to which house she had gone, not for the purpose of seeing the fireworks, but of making a neighborly call.
    
      Held., that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That the exhibition of fireworks constituted a public nuisance, for the results of which the defendant was liable, notwithstanding the fact that said exhibition was given by a church organization upon private property, at a point specifically designated under the direction of the commissioner of police.
    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 Kings on the 20th day of June, 1904, upon the verdict of a jury for $4,775, and also from an order entered in said clerk’s office on the 21st day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      James D. Bell [James W. Covert and John J. Delany with him on the brief], for the appellant.
    
      Henry A. Powell, for the respondent.
   Rich, J.;

The main questions presented on this appeal by counsel for the appellant have been decided adversely to their contention by the Court of Appeals in Landau v. City of New York (180 N. Y. 48), in which it was held that the adoption of a resolution by the defendant’s board of aldermen suspending its ordinances relating to the discharge of fireworks within its limits, so far as they applied to political meetings and parades, for a specified time, subject to such restrictions and safeguards as the police department might deter- . mine as necessary, was tantamount to -an invitation to, and was in substance and effect, a license and permit to those conducting such meetings and parades to set off fireworks during and within the time specified, and that their act in availing themselves of such permission, and proceeditig thereunder, if found by a jury as matter of fact to constitute á public nuisance, rendered the city liable for damages to a person injured by a premature explosion of such fireworks, by reason of consent having been given in advance to the existence of such a nuisance in its streets.

In the case at bar the defendant’s board of aldermen, on May 13, 1902, adopted the following resolution : “ Resolved, That the ordinance relating to the discharge of fireworks be and the same is hereby suspended, so as to permit a display by the congregation of St. Mary’s Powell Street Church, Borough of Brooklyn, on the north side of Pacific street, about seventy-five feet east of Sackman street, on May 19,1902, under the direction of the Commissioner of Police,’ which resolution thereafter became operative under the provisions of section- 40 of the Greater New York charter (Laws of 1901, chap. 466). On the evening of May nineteenth an acting captain of police, accompanied by fifteen policemen, acting under direction of the inspector, went to the place where the display of fireworks was authorized. to take place and remained there about two hours while the exhibition was in progress. The display was upon a-vacant lot; directly opposite this lot was the residence of Mrs. Ellen Gregg. The plaintiff, having no knowledge that a display of fireworks was to be given that evening, called upon Mrs. Gregg and was seated on the veranda of her house at the time of the accident. She did not go there, as she testified, to see the fireworks, but to make a neighborly call. A little after nine o’clock the exhibition was commenced. It consisted of set pieces, sky rockets and similar fireworks that went up in the air and exploded with loud reports,' which were set off close to the sidewalk, on the lot side, as near to the walk as they could be placed, as testified to by several witnesses. There was no fence along the lot between the sidewalk and the lot. Shortly aftér the commencement of the exhibition a large set piece was lighted which from some unexplained cause exploded; a largó piece of it was thrown across the street, striking the plaintiff on the side of her head and inflicting the injury complained of. The learned trial justice submitted to the jury as a question of fact whether the exhibition of fireworks was, under the circumstances established by the evidence, a public nuisance,-and of the correctness of their finding that it was there can be little doubt.

The appellant contends that the fact that the exhibition of fireworks resulting in the injury to plaintiff was given by a church organization upon private property, at a point specifically designated, under the direction of the commissioner of police, distinguishes and removes the case at bar from the effect of the decisions in Landau v. City of New York (supra) and Speir v. City of Brooklyn (139 N. Y. 6), and leaves the question of defendant’s liability an open one in this court. We are unable to reach this conclusion. The exhibition was given at the time and place authorized and permitted by defendant, upon property abutting a well built-up and populated residence street, under the personal supervision and direction of defendant’s police authorities. Although the fireworks were discharged upon private property, the place of their discharge was so close to the street (being just inside the sidewalk) that defendant is not relieved from liability by that fact. The danger to persons and property in the vicinity was just as great and as much to be apprehended as if the actual place of discharge had been in the street. The fireworks having been discharged in such close proximity to the street, within a few inches of the street line, on a lot surrounded by inhabited houses, justified the jury in finding the exhibition actually dangerous to people lawfully in that vicinity, and a public nuisance, for the results of which the defendant was liable.

The case of Leonard v. City of Hornellsville (41 App. Div. 106), cited by appellant as an authority supporting its contention, is not in point. The proposition there declared, that a municipal corporation is not liable for a failure to exercise its charter powers in abating a nuisance upon private property so near the street as to menace the safety of persons lawfully using the highway, is not applicable to the facts established in the case at bar in which the liability of the city is predicated upon the affirmative action of defendant in licensing and permitting an act made unlawful by its ordinances, carried out under the supervision of its own officers in such close proximity to a residence street as to constitute a public nuisance, dangerous to the safety of persons lawfully in the vicinity where the exhibition was given, upon business not connected with such exhibition or as voluntary spectators thereof.

The appellant’s exceptions present no reversible error, and we do not regard the damages awarded by the jury as excessive.

The judgment and order must, therefore, be affirmed, with costs.

Present — Hirschberg, P. J., Bartlett, Woodward, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs..  