Melker v. City of New York

• Decision Date: 21 January 1908
• Parties: MELKER v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 481

83 N.E. 565

MELKER

v.CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 21, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Samuel Melker, by his guardian ad litem, against the city of New York. From a judgment of the Appellate Division in the First Department (103 N. Y. Supp. 1134) unanimously affirming a judgment entered on a verdict rendered in favor of defendant, plaintiff, by permission of the Appellate Division, appeals. Affirmed.

William M. K. Olcott and T. B. Chancellor, for appellant.

Francis K. Pendleton, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

VANN, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the fault of the defendant. The complaint contains two counts, one alleging negligence, which was not relied upon at the trial, and the other a nuisance, as the ground of recovery. The action involves the liability of the defendant for an explosion of fireworks on Madison avenue, adjoining Madison Square, on the evening of election day, in November, 1902, after the board of aldermen had adopted a resolution suspendingthe ordinances relating to the discharge of fireworks, ‘so far as they may apply to the meetings and parades of political parties or associations during the campaign of 1902.’ The case is a companion to one recently decided by us relating to the same accident. Landau v. City of New York, 180 N. Y. 48, 72 N. E. 631,105 Am. St. Rep. 709. Upon the trial of that action it was not disputed that ‘the National Association of Democratic Clubs, a political organization, had a parade on the evening of November 4, 1902, and its officers arranged to have a display of fireworks on Madison avenue between Twenty-Third and Twenty-Fifth streets in connection therewith.’ Upon the trial of this action the allegation as to a parade by a political organization was disputed, and evidence was given by both parties upon the proposition, so that it became a question of fact for the jury. In other respects the leading facts were the same in both cases. Madison avenue, at the point in question, ‘is a wide street, bounded on the west by Madison Square, a park of seven acres, where, as well as in the adjoining the election returns and witness the parade. the election returns and witness the park and They stood closely crowded in the park and on both sides of Madison avenue. The fireworks, consisting of mortars, bombs, rockets, and the like, were arranged in six parallel rows in the middle and on the west side of the avenue, commencing about 12 feet from the curb. * * * They filled the middle of Madison avenue from Twenty-Fourth to Twenty-Fifth streets. The bombs were fired from mortars made of steel tubing, and were of a kind that had been frequently used before without serious results.’ Between 9 and 10 o'clock in the evening some of the fireworks exploded from a cause not disclosed by the evidence, and the plaintiff was injured. The case was submitted to the jury under the instruction that, in order to render a verdict for the plaintiff, they ‘must find that there was a meeting or a parade of a political party, or a political association, and that the fireworks were discharged in connection with this parade or meeting,’ to which no exceptionwas taken. The trial court further charged the jury that they should ‘determine whether or not the fireworks that were then exposed in the city of New York constituted a nuisance,’ and that if they were a nuisance the defendant was liable, to which an exception was taken. The plaintiff requested the court to charge that ‘fireworks placed upon the surface of a great thoroughfare, in the midst of a large city, where a vast multitude of people is assembled, and exhibited and discharged there on an extensive scale, as was done in this instance, constitutes a nuisance as matter of law.’ The court refused to so charge, and the plaintiff excepted. The plaintiff testified that he went to the place in question for the purpose of seeing ‘the election returns, the balloon, and the fireworks'; but no instruction was given or requested as to the effect of his presence as a voluntary spectator of the display. The jury found a verdict for the defendant, and the Appellate Division, after unanimously affirming the judgment entered accordingly, permitted an appeal to this court, and certified that, in its opinion, ‘a question of law is involved which ought to be reviewed by the Court of Appeals.’

The rule of unanimous affirmance requires us to assume, for the purpose of this appeal, that the exhibition of fireworks in question was not held in connection with a meeting or parade of a political party or association, and that there was no nuisance as matter of fact. The only question requiring the expression of consideration is whether upon the conceded facts a nuisance existed as matter of law. Twice, quite recently, we have considered the question whether a display of fireworks in a public street in the midst of a large city is a nuisance. Speir v. City of Brooklyn, 139 N. Y. 6, 34 N. E. 727,21 L. R. A. 641, 36 Am. St. Rep. 664;Landau v. City of New York, 180 N. Y. 48, 72 N. E. 631,105 Am. St. Rep. 709. In the earlier case the exhibition was held at the junction of two narrow streets in a compact part of the city of Brooklyn, and the damage was caused by fire resulting from the discharge of a rocket directly through a window of the plaintiff's house. Chief Judge Andrews, speaking for the court, said: ‘The finding of the trial judge that the use of the street for the discharge of fireworks constituted a public nuisance is amply justified in view of the circumstances. It has been decided in some cases that the discharge of fireworks in the streets of a city or village is a nuisance perse, and subjects persons engaged in the transaction to responsibility for any injury to person or property resulting therefrom. Jenne v. Sutton, 43 N. J. Law, 257, 39 Am. Rep. 578;Conklin v. Thompson, 29 Barb. 218. It may be doubted whether the doctrine in its full breadth can be maintained. The practice of making the display of fireworks a part of the entertainment furnished by municipalities on occasions of the celebration of holidays or the commemoration of important public events is almost universal in cities and villages, and we are not prepared to say that this may not be done, and that streets and public places may not be used for this purpose under the supervision of municipal authorities, due care being used both as to the place selected and in the management of the display, without subjection the municipality to the charge of sanctioning a nuisance and the responsibility of wrongdoers.’ The final conclusion announced was that the circumstances were such as to authorize the trial court to hold the city liable for an ‘unreasonable, unwarranted, and unlawful use of the streets,’ and that such use ‘was properly found to constitute a nuisance.’ The emphasis of the opinion rests on the location at the junction of two narrow streets and the imminent danger of fire, owing to the contracted space and the inflammable nature of the materials used. Speir v. City of Brooklyn, 139 N. Y. 6, 11,34 N. E. 727,21 L. R. A. 641, 36 Am. St. Rep. 664. The later case involved the display of fireworks now under consideration, where the space was ample, the danger from fire comparatively light, the management in charge of experts of high standing, the accident of unknown origin and of a kind not reasonably to be apprehended. Upon the first trial of that case the plaintiff had a verdict, which was reversed by the Appellate Division. Landau v. City of New York, 90 App. Div. 50,85 N. Y. Supp. 616. Upon the second trial there was a nonsuit and the Appellate Division affirmed, but we reversed and granted a new trial upon the ground, distinctly announced, that ‘a case was made for the jury.’ In discussing the subject we said: ‘There is a distinction, well recognized by law, between the discharge of fireworks upon private property and in a public highway. There is also a distinction in this regard between highways, depending on their location, the extent of the traffic...