Pack v. Mayor of New York , 1 Seld. Notes 94 ( 1853 )

The plaintiff with his family occupied a part of a house at the comer of 40th street and Broadway, in the city of New York. The defendants, through their street commissioner, made a contract with one Foster to regulate (grade) Broadway, between 23d and 42d streets, in conformity with a specification mentioned in the contract, for a consideration also specified therein. Foster made a contract with one Riley to do the blasting on the job, by whose negligence in firing a blast opposite, and within less than forty feet of the plaintiff’s house, several rocks of great weight were thrown into his house, his wife and property injured, and one of his children killed.

This action was brought to recover damages of the corporation, for such injury.

Held, that the defendants were not liable for the negligence of Foster, or of the servants or agents employed by him.

That the rule by which one person is made liable for the negligence or wrongful act of another, does not apply to a case where the party sought to be charged, does not stand in the relation of master or principal to the person by whose negligent or wrongful act, the injury has been occasioned.

(S. C., 8 N. Y. 222.)