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App. Div.]


ly traversing the return, in which event the whole question relating to the jurisdiction of the magistrate may be inquired into. (People it rel. Danziger v. P. E. IIouse of Mercy, supra, 185, 189.) It has also been held by the same court that in such case the warrant of commitment, even though issued by an inferior court, is conclusive, and the facts may not be inquired into, even though the return be traversed. (People ex rel. K’uhn v. P. E. House of Mercy, 133 N. Y. 207.) In the case at bar the magistrate had jurisdiction to try offenses designated as disorderly conduct, tending to a breach of the peace, under section 1458 of the Consolidation Act, and the war rant of commitment recites the jurisdictional facts, and the return to the writ of habeas corpus presenting the commitment was not traversed. It, therefore, appeared that the conviction was authorized, that warrant of commitment was duly issued, and that the relator was legally in the custody of the warden of the city prison.

The magistrate to whom the writ of certiorari was issued, and upon whom it was served, made return that the relator was tried before him at the first district City Magistrate's Court in the city of New York on the 16th day of March, 1902, charged upon the deposition of John O'Rourke, which was thereto annexed, with “dis. conduct ;” that upon the trial the said O'Rourke, after being duly sworn, was examined in the presence and hearing of the relator, and testified that the relator “ did at the time and in the public place mentioned in said complaint make a noise, disturbing the peace, and did then (and) there obstruct the free passage of pedestrians on the sidewalk;” that the magistrate thereupon convicted the relator “of being guilty of such disorderly conduct charged in said complaint, and as in my opinion tended to and might provoke a breach of the public peace," and thereupon committed him to the workhouse for the period of six months, or until he should be discharged according to law. The information filed against the relator and annexed to the return is an affidavit by a police officer charging that on the day in question, at the city and county of New York, the relator “was in Walker Street, and that he was making a noise, disturbing the peace, and did then and there obstruct the free passage of pedestrians on the sidewalk.”

The charge was substantially in accordance with the proof given mpon the trial, from which the inference of guilt was drawn by the


[Vol. 86. magistrate, but even if that were not so, it would not be reviewable by habeas corpus proceedings. All that was essential to the jurisdiction of the magistrate is that the relator was arraigned before him and apprised of the nature of the offense with which he was charged and for which he was to be tried, and afforded an opportunity to defend, and was then duly tried thereon. Thas if we should treat the return to the writ of habeas corpus as traversed and the return to the writ of certiorari as the evidence adduced on the hearing thereon, still it appears that the magistrate had jurisdiction of the offense of the relator, had authority to try him and impose the sentence, and there was some evidence tending to show guilt, so that within all the authorities the writs should have been dismissed ; and whether all of these things are essential to jurisdiction and may be inquired into on habeas corpus after conviction, perhaps, should not, in view of the conflicting decisions, be determined upon this appeal. If the offense was committed in the presence of a police officer he might have arrested the relator without any warrant, and we know of no law in such case requiring that a formal information be filed before the prisoner is arraigned.

It follows that the order should be reversed and the writs dismissed.

Van Brunt, P. J., PATTERSON, INGRAHAM and Hatch, JJ., concurred.

Order reversed and writs dismissed.

MICHAEL DUERR, Respondent, v. CONSOLIDATED Gas COMPANY OF New York, WILLIAM J. Logan and Frank J. Logan, Appellants.

Negligence bursting of a gas receiving tank - when both the gas company and tho

contractor are liable to a person injured thereby where a complaint is framed and a trial is conducted on the theory of negligence the action will not, on appeal, be considered as based on trespass doctrine of res ipsa loquitur error in charge as to liability for the injury.

In an action brought against the Consolidated Gas Company, William J. Logan

and Frank J. Logan, to recover damages for personal injuries sustained, in consequence of their alleged negligence, by the plaintiff, it appeared that the defendant gas company, through its engineering department, prepared plans for

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903. the erection, on premises owned or leased by it, of a gas holder, guide frame and steel tank; that it contracted with the defendants Logan for the construction thereof pursuant to the plans and specifications and “under the direction of

the chief engineer of the owner." The specifications provided that the tank should not “ be accepted until it has

been proven watertight, after being filled with water to its full height and his

so remained for thirty days." The tank was one hundred and seventy-eight feet in diameter and was forty-two

deep, twelve feet thereof being below the ground. Its capacity was 1,000,000

cubic feet of water weighing over 60,000,000 pounds. Upon the completion of the tank the gas company, at the request of the defend.

ant contractors, filled the tank with water for the purposes of the test. A few hours after the process of filling the tank had been completed, it burst, and the plaintiff, who was employed in an adjacent factory, was injured by the

rush of water. The material of which the tank was constructed was suitable for the purpose, and if the plans and specifications had been followed, the tank would have

been able to withstand three times the pressure under which it collapsed. The specifications for the tank provided that the rivet holes in the plates con

stituting the lower portion of the tank should be drilled. The plaintiff gave evidence tending to show that by direction of the chief engineer of the gas company these holes were punched instead of being drilled; that on account of the thickness of the plates in question it was improper to punch the rivet holes therein; that the effect thereof was to diminish the resisting power of the tank to such an extent that it was unable to withstand the weight.

of the water. There was no evidence of any external violence to the tank, nor of any fact tend

ing to account for the accident, except unskillful and improper construction, Upon an appeal from a judgment in favor of the plaintiff against all of the

defendants, Held, that, as the complaint had been framed and the action tried upon the theory of negligence, the question whether the defendants were liable upon

the theory of a trespass should not be determined; That the evidence was sufficient to justify a finding that both the gas, company

and the defendant contractors were guilty of negligence; That the fact that the gas company had committed the work of constructing the

tank to reputable and independent contractors did not, under the circum

stances disclosed by the evidence, relieve the gas company from liability; That the fact that the contractors had built the tank in accordance with the

specifications of the gas company, as modified by the latter's chief engineer, did not relieve them from liability as they had held themselves out to be competent builders of work of such character and would, therefore, be presumed to

know the effect of punching the rivet holes instead of drilling them; That the court properly charged the jury that the doctrine of res ipsa loquitur

was applicable to both the gas company and the contractors; that it was applicable to the gas company on account of its ownership, its possession of the


[Vol. 86.

premises and its supervision of the work, and that it was applicable to the contractors because they constructed the tank, participated in filling it with

water and were in charge of the work; That the court erred in charging, “The jury may take into consideration the

fact that experience teaches that water tanks, if properly constructed, do not break without adequate cause. If the jury find that there is no evidence of external violence or other adequate cause, the fair presumption is that the breaking of the tank occurs through some serious defect in its condition, which could scarcely have escaped the observation of the persons in control thereof, and the jury may infer negligence on their part," as the effect of the charge was to instruct the jury that the presumption of negligence on the part of the defendants was conclusive notwithstanding the evidence offered by the defendants to show proper workmanship and inspection; that the charge was also erroneous in its statement that the defect “could scarcely have escaped the observation of the persons in control thereof."

APPEAL by the defendants, the Consolidated Gas Company of New York and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1902, upon the verdict of a jury rendered by direction of the court for $5,000, and also from an order entered in said clerk's office on the 31st day of December, 1901, denying the defendants' motion for a new trial made upon the minutes.

The action is bronght to recover for personal injuries sustained by the plaintiff in consequence of the collapse of a tank containing 1,000,000 cubic feet of water alleged to have been caused by the negligence of the defendants. The defendant gas company was the owner or lessee of premises extending from Twentieth to Twentyfirst streets in the interior of the block between Avenue A and First avenue. Evidently through its engineering department — although the fact is not specifically shown - it prepared plans and specifica tions for the erection on these premises of a four-lift gasholder, guide frame and steel tank, and on the 15th day of March, 1898, contracted with the defendants Logan for the construction thereof pursuant to such plans and specifications and “under the direction of the Chief Engineer of the owner.” The work was commenced on or about the 1st day of June, 1898. The specifications provided that the tank was not to “be accepted until it has been proven water-tight after being filled with water to its full height and has so remained for thirty days." Upon the 3d day of December, 1898,

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903. work upon the tank proper was completed and the contractors requested the gas company to turn on the water for the test. The interior diameter of the tank was one hundred and seventy-eight feet and its depth was forty-two feet. Twelve feet of the tank were below the surface of the ground, but an open pit extended all around it. The bottom of the tank was formed of steel plates three-eighths of an inch in thickness resting on concrete and brick foundation. The sides of the tank were also constructed of steel plates consisting of ten courses, each course consisting of twentytwo plates a little over four feet wide and twenty-seven or twentyeight feet long. The thickness of the plates ranged from one and onehalf inches for the lower course to seven-eighths of an inch for the upper course. The edges of the plates were to be planed and fitted, the horizontal seams lap-riveted and the vertical joints to be butted and the plates joined by outside and inside butt-straps. The bottom course of side plates was to be connected with the bottom plates by a ring of five by five-inch angle steel extending all around and composed of twenty-two bars or sections. The bottom course of side plates was to be riveted to this angle steel by a single row of one and one-quarter inch rivets spaced about three and eighttenths inches from center to center. The rivets of the next horizontal seam above, near the top of the plates, were to be one and one-half inches in diameter, spaced four and nine-tenths inches from centers. For the number, size and position of rivets in the plates at the ends or vertical seams the specifications referred to a detailed drawing which is not contained in the record, but evidently it is not material. The company had a water tank or tower in the vicinity filled with water from the East river and this was connected with the new tank and the water was allowed to flow in gradually until the tank was filled, which took ten days, and the water was shut off at eight o'clock in the morning of the thirteenth day of December. At about fivetwenty o'clock in the afternoon the tank gave way. The plaintiff, a wood carver, was working on the ground floor in the rear of a furniture factory on adjacent premises which fronted on Avenue A. The water tore away the rear and part of the side of the face tory, carrying him into the street and dashing him against floating debris and other obstructions whereby he sustained serious injuries.


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