Simmons v. Everson

• Decision Date: 24 February 1891
• Citation: 26 N.E. 911,124 N.Y. 319
• Parties: SIMMONS et al. v. EVERSON et al.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 319

26 N.E. 911

SIMMONS et al.

v.EVERSON et al.

Court of Appeals of New York, Second Division.

Feb. 24, 1891.

Appeal from a judgment of the general term of the fourth judicial department, affirming a judgment entered on the decision of the circuit court.

The trial court found that for many years prior to October 18, 1887, the appellants owned in severalty three lots, each being 22 feet wide, and bounded on the east by the center line of South Salina street in the city of Syracuse. The south lot was owned by the defendant Lynch, the middle one by the defendant Pierce, and the north one by the defendant Everson. On these lots stood three brick stores, separated from each other by brick partition walls extending from the foundations to the roofs. A continuous brick wall of uniform height (about 60 feet) and thickness stood adjacent to the west line of the street, and formed the front of the buildings. The partition walls and the front wall were interlocked, or built together. On the date mentioned the three stores were substantially destroyed by fire, nothing being left standing except the front wall, a part of the partition walls, and a small part of the wood-work in the front of Everson's building. Shortly after this event the front wall began to lean towards the street, and continued to incline more and more in that direction until November 17, 1887, when it gave way near the point where it was united with the partition wall between the buildings of Lynch and Pierce, carrying down the entire front and part of both partition walls. Material from the part of the front wall standing on the lots of Everson and Pierce and from their partition wall fell on and killed the plaintiff's intestate, who was lawfully on the sidewalk near the boundary between their properties. No part of the walls on Lynch's lot fell on decedent. It was found that immediately after the fire the front and part of the partition walls became weak, unsafe, dangerous, and liable to fall into the street, and that each of the defendants was careless and negligent in not removing or supporting the walls on his own lot, and that the several neglects of the defendants united and directly caused the walls to fall. It was further found that these walls were so unsafe that they were a public nuisance, and also that the decedent did not negligently contribute to the accident or to his own death. The damages were assessed at $5,000.

M. M. Waters, for appellant Giles Everson.

Hiscock, Doheny & Hiscock, for appellant Patrick Lynch.

Smith, Kellogg & Wells, for appellant Sylvester P. Pierce.

Wm. Nottingham, for respondents.

FOLLETT, C. J., ( after stating the facts as above.)

It is urged in behalf of the defendants that at most this is but a case of several independent acts of negligence committed by each, the joint effect of which caused the accident, and for which they are not jointly liable within the rule laid down in Shipman v. Palmer, 77 N. Y. 51. The case at bar does not belong to the...