Benner v. Atlantic Dredging Co.

• Decision Date: 07 June 1892
• Parties: BENNER v. ATLANTIC DREDGING CO.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 156

31 N.E. 328

BENNER

v.ATLANTIC DREDGING CO.

Court of Appeals of New York, Second Division.

June 7, 1892.

Appeal from supreme court, general term, second department.

Action by Charles Benner against the Atlantic Dredging Company. From a judgment of the general term affirming a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

VANN, J., dissenting. 12 N. Y. Supp. 181 , reversed.

The other facts fully appear in the following statement by LANDON, J.:

N. C. Moak, for appellant.

Edw. C. Perkins, for respondent.

This action was brought to recover damages caused to a house belonging to the plaintiff at Astoria, N. Y., by blasting done by the defendant in the waters of Hell Gate, between January 5, 1887, and April 12, 1888. The complaint alleged that the defendant did ‘wrongfully and unlawfully so discharge such blasts * * * as to shake, jar, damage, and injure this plaintiff's said dwelling house, * * * and to create a nuisance, and did so maintain such nuisance, and so negligently and carelessly blast such rock, * * * that plaintiff's said dwelling was solely thereby shaken and injured,’ etc. The defendant pleaded, among other defenses, that such blasting ‘was done and performed under and by virtue of the authority of the United States, and under the direction of the officer of the engineer corps of the United States army in charge of said work; that such operations were a public necessity and requirement, and were duly performed in a lawful and careful manner, and without any default, negligence, or carelessness upon the part of the defendant.’ Evidence was given upon the trial tending to show that the plaintiff's house, which had been previously injured by explosions, was placed in good repair in November, 1886, and that afterwards, through the blasting operations of the defendant, the foundations, walls, and ceilings were cracked and injured, as alleged in the complaint. The blasting was done by the defendant under a contract dated November 16, 1886, between ‘Lieut. Col. Walter McFarland, corps of engineers U. S. army, of the first part, and the Atlantic Dredging Co., * * * of the second part.’ It witnessed that ‘the said Lieut. Col. Walter McFarland, for and in behalf of the United States of America, and the said Atlantic Dredging Co.,’ had mutually agreed, etc. The subject of the contract was the removal of 50,000 tons of broken rock from Middle reef, or Flood rock, Hell Gate, New York, at a certain price per ton, subject to inspection ‘by an inspector appointed on the part of the government.’ The specifications provide that ‘the contractor will do such surface blasting as may be necessary at his own expense.’ The contract was signed, ‘Walter McFarland, Lieut. Col. of Engineers. [L. S.]’-and by the defendant through its president, and was ‘approved November 29, 1886, by H. DREAM, Brig. Gen. Chief of Engineers.’ Other facts are stated in the opinion.

LANDON, J., ( after stating the facts.)

The plaintiff contends that the defendant did not prove that it was authorized by the United States to blast the rocks in Hell Gate. The defendant had read in evidence, without objection, the contract under which it prosecuted the work of removing 50,000 tons of broken rock from Hell Gate. This contract was made by Lieut. Col. Walter McFarland, corps of engineers United States army, as party of the first part, and recited that he made it ‘for and in behalf of the United States of America, * * * subject to the approval of the chief of engineers U. S. A.,’ and was approved by that officer. The plaintiff also read a stipulation of the defendant's attorney that plaintiff might read in evidence the whole or part of the records of the war department concerning the contract by the defendant to do the work in the Hell Gate improvement, and the work done by the defendant under the contract. The plaintiff did prove by Lieutenant Derby, an officer in the United States government employ, that he was superintendent of the improvement, and as such kept a record of the progress of the work. Plaintiff read from this record, under the stipulation, matters relating to the explosions. Plaintiff also read in evidence a letter of Lieut. Derby to the defendant respecting the explosions. The plaintiff thus attempted to convict the defendant of improperly conducting the explosions, by the records of the war department. The effort does not appear to have been successful. While the defendant had possession of the case, its counsel was proceeding to give further evidence of the fact that its contract was with the United States, when the trial court interrupted him, and a colloquy ensued between the court and defendant's counsel, in which the court said: ‘There is nobody who says it [the contract] was not authorized. * * * These plaintiffs cannot question your right to be there, because you proved the contract which took you there. * * * Col. McFarland was in the habit of making contracts for the government. I presume the government recognized the contracts, and paid under them.’ Defendant's counsel thereupon desisted from presenting further evidence respecting the proper authorization by the United States. There is no suggestion in the record that the plaintiff did not acquiesce in the views presented by the court. The court in charging the jury, after stating that large masses of broken rock were left in the bottom of East river as the result of a great explosion conducted by the United States government in 1885, and that the rocks were dangerous to navigation, added: ‘The Atlantic Dredging Co. entered into a contract with the general government for the destruction and removal of these fragments. * * * Under that contract they went upon the East river, and commenced the destruction of these fragments, which were scattered about the bottom of the river. The defendant was thus justified in going there.’

Upon these facts, this court cannot entertain the suggestion that the defendant must fail because it did not show that in removing these masses of rock it was acting under the authority of the United States. Evidence had already been given tending to prove that it acted under such authority. The stipulation and evidence adduced by the plaintiff implied that the fact was so. The defendant was giving further evidence to the same end, and practically was not allowed to give any more. The question was put to rest by the statement of the court to the effect that further proof was unnecessary. The plaintiff had the right to rely upon the direction given by the court. Flora v. Carbean, 38 N. Y. 111. True, the record does not present the plaintiff's exceptions. Why not? Because no exception taken by the plaintiff can aid him. He...