Hunt v. City of New York

• Decision Date: 10 April 1888
• Citation: 109 N.Y. 134,16 N.E. 320
• Parties: HUNT v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 134

16 N.E. 320

HUNT

v.CITY OF NEW YORK.

Court of Appeals of New York.

April 10, 1888.

Appeal from general term, superior court, city of New York.

The plaintiff, Walter M. Hunt, on the 27th day of January, 1883, while lawfully passing along Broadway, in the city of New York, was seriously injured by an explosion at one of the man-holes of the American Heating & Power Company, at the junction of Broadway and Maiden Lane. The American Heating & Power Company was the assignee of the rights and franchises of the United States Heating & Power Company. Both corporations were organized under chapter 40, Laws 1848, entitled ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,’ and the amendments thereto. By chapter 317, Laws 1879, power was given to steam-heating companies organized under the act of 1848, or under any of the amendments thereto, to ‘lay pipes or conductors for conducting hot water, hot air, or steam through the streets, etc., of any city, village, or town, with the consent of the municipal authorities of said city, town, or village, and under such reasonable regulations and conditions as they may prescribe.’ The act also provides that the permission of the municipal authorities shall only be granted on the condition that reasonable compensation shall be paid therefor, and a satisfactory bond given to secure the municipality against all damage in the use of such pipes. On the 16th of March, 1880, the common council of the city of New York passed an ordinance granting permission to the United States Heating & Power Company, its heirs, successors, or assigns, to lay mains and pipes in the streets of the city, with such connections as may be required for the purpose of conveying water and steam to supply heat and power to the city and its inhabitants for domestic and other purposes, upon certain conditions specified in the ordinance. These conditions were that the company should furnish to the department of public works a map of the proposed work, and of the position of the mains and pipes; execute a bond to the city in the sum of $50,000 to protect the city against any accident that may occur under the permission given; furnish such heat and power as should be required for streets and public buildings at prices to be fixed by the board of estimate and apportionment; pay to the comptroller of the city in each year a sum equal to three cents for each lineal foot of mains laid, and 2 per cent. of the net profits for the year; and the city reserved to the department of public works the right to change the position of the mains or pipes whenever they should interfere with free access to the sewers, mains, and pipes belonging to the city. After the assignment by the United States Heating & Power Company of its rights and franchise to the American Heating and Power Company, the latter company proceeded, under the permission given by the city, to dig in Broadway and the connecting streets in the lower part of the city, and laid down therein iron pipes for the purpose of conducting steam; ‘and, for the use and convenience of the company in so doing, the said company made a man-hole at the juncion of Maiden Lane and Broadway, large enough to go down in from the surface of the street to the pipes, which were laid five or six feet under ground.’ On the trial, two witnesses were examined for the plaintiff, viz., one Madden, acting superintendent of the Mutual Gas-Light Company, and one Culver, a city inspector of the laying of pipes of the steam companies in the city. Madden testified that the steampipes were laid about two and a half feet below the pipes of the gas company; that the gas company had an inspector present all the time to protect its mains and service-pipes while the workmen of the heating company were excavating, and that he (the witness) was present very often for the same purpose; that the steam-pipes were laid in boxes of wood, in a composition of glass, lampblack, and other more or less non-conducting substances; that the digging interfered with the pipe of the gas company, and they had to be protected and held up by chains while the work was being done; that the gas company protected its pipes as well as it could, but after replacing the earth the gaspipes leaked. The witness further testified: ‘He could not say there was anything wrong in digging out and replacing the earth, but he testified that after replacing the earth it did settle a good deal, and would have settled however well stamped. That, in settling, it did displace the gas-pipes, cause them to sag or go down, and shook the joints. Everything was done that was possible to be done to prevent any sagging. After the steam was let in the steam-pipes, the ground became very warm, and the lead in the gas-pipes became very soft. That at the place where the man-hole was, at the junction of Maiden Lane and Broadway, the steam-pipes crossed the gas-pipes, and there was a general meeting of all the steam-pipes in this man-hole. They run both ways, or along both streets. The man-hole was made of bricks and cement, with two iron covers over it. When the explosion occurred, this witness, who was near by, went there immediately, and finding a fire burning the wooden case of the steam-pipes down in the man-hole, went down and put it out. There was an explosion the day before from the same cause where the steam and gas pipes met at the corner of Nassau and Fulton streets. The American Heating & Power Company turned off its steam, and abandoned its business and the pipes, two or three days before the explosion occurred; but at the time of the explosion the witness found the...