SIMMONS ET AL. v. EVERSON ET AL., 124 N.Y. 319 (1891)

26 N.E. 911

JOSEPHINE SIMMONS et al., as Administrators, etc., Respondents, v. GILES EVERSON et al., Appellants, Impleaded, etc.

Court of Appeals of the State of New York.Argued January 29, 1891
Decided February 24, 1891

Page 320

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

Page 321

M.M. Waters for appellant Everson.

Smith, Kellogg Wells for appellant Pierce.

Hiscock, Doheny Hiscock for appellant Lynch.

Page 322

William Nottingham for respondents.

Page 323

FOLLETT, Ch. J.

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 i Chipman v. Palmer (77 N.Y. 51).

The case at bar does not belong to the class of actions arising out of acts or omissions which are simply negligent, and while the defendants did not intend by their several acts to commit the injury, their conduct created a public nuisance which is an indictable misdemeanor under the statutes of this state (Penal Code, §§ 385, 387; Vincett v. Cook, 4 Hun, 318) and at common law. (Regina v. Watts, 1 Salk. 357; S.C., 2 Ld. Raym. 856; 1 Russ. Cr. [5th ed.] 423; 2 Whar. Cr. Law, § 1410; Big. Torts, 237; Pol. Torts [2d ed.] 345; Stephens Dig. Cr. Law, art. 176; Indian P.C. § 268.)

Persons who by their several acts or omissions maintain a public or common nuisance, are jointly and severally liable for

Page 324

such damages as are the direct, immediate and probable consequence of it. (Irvine v. Wood, 51 N.Y. 224, 230 Slater v. Mersereau, 64 id. 138; Timlin v. Standard Oil Co., 54 Hun, 44; Klauder v. McGrath, 35 Penn. St. 128; 1 Shear. R. Neg. [4th ed.] § 122; Pol. Tort [2d ed.] 356.)

The fall of these four-story brick walls into the street, was the direct and immediate consequences of the several acts of the defendants in suffering the portions standing on their own lots to remain unsupported after they had visibly begun to incline towards the street, and it was as obvious before as it was after the accident that if any part of the front wall fell, a large part of it must, and that it would go into the street.

The judgment should be affirmed, with costs.

All concur, except VANN, J., not voting.

Judgment affirmed.