Losee v. . Clute , 51 N.Y. 494 ( 1873 )

It appears by the case that the defendants Clute manufactured the boiler in question for the Saratoga Paper Company, in which they were stockholders, for the purposes and uses to which it was subsequently applied by it; and the testimony tended to show that it was constructed improperly and of poor iron, that the said defendants knew at the time that it was to be used in the immediate vicinity of and adjacent to dwelling-houses and stores in a village, so that, in case of an explosion while in use, it would be likely to be destructive to human life and adjacent property, and that, in consequence of the negligence of the said defendants in the improper construction of the boiler, the explosion that took place occurred and damaged the plaintiff's property The evidence also tended to show that the boiler was tested by the company to its satisfaction, and then accepted, and was thereafter used by it for about three months prior to the explosion, and that after such test and acceptance the said defendants had nothing whatever to do with the boiler, and had no care or management of it at the time of the explosion, but that the company had the sole and exclusive ownership, management and conduct of it.

In determining whether the complaint was properly dismissed, we must assume all the facts which the evidence tended to show as established, and the question is thereby presented whether the defendants have incurred any liability to the plaintiff. They contracted with the company, and did what was done by them for it and to its satisfaction, and when the boiler was accepted they ceased to have any further control over it or its management, and all responsibility for what was subsequently done with it devolved upon the company and those having charge of it, and the case falls within the principle decided by the Court of Appeals in The Mayor, etc., of Albany v. Cunliff (2 Comst., 165), which is, that the most architect or builder of a work is answerable only to his employes for any want of care or skill in the execution thereof, and he is not liable for accidents or injuries which may occur after the execution of the work; and the opinions published in that case clearly show that there is no ground of liability by the defendants to the plaintiff in this action. They owed him no duty whatever at the time of the explosion either growing out of contract or imposed by law.

It may be proper to refer to the case of Thomas v.Winchester (2 Selden, 397), cited by the appellant's counsel, and I deem it sufficient to say that the opinion of HUNT, J., inLoop v. Litchfield (42 N.Y., 351) clearly shows that the principle decided in that case has no application to this.

It appears from these considerations that the complaint was properly dismissed, and it follows that there was no case made for the consideration of the jury, and, consequently, there was no error in the refusal to submit it to them.

There was an exception taken to the exclusion of evidence to show that two persons were killed by this boiler in passing through a dwelling-house in its course, but as it is not urged on this appeal, it is, I presume, abandoned; but if not, it was matter, as the judge held at the trial, wholly immate rial to the issue between the parties in this action.

There is, for the reasons stated, no ground for the reversal of the judgment. It must, therefore, be affirmed, with costs.

All concur.

Judgment affirmed.