Hubbs, J.:
The defendant owns and operates two large oil tanks, situate one hundred and twenty-five feet from the street on an open lot in the city of Olean. One of the tanks is used for gasoline. There is a private right of way leading to the tanks which is used by vehicles. Delivery tanks are filled from these large tanks. In front of the tanks there is a wooden platform twelve or fifteen feet long and six feet wide. The tanks are contained in a depression in the ground but they are not inclosed by a wall, fence or building.
[584]*584On October twenty-second the plaintiff, nine years of age, with two other small boys of about the same age, built a bonfire. They then went to the premises of the defendant and took some gasoline from a milk can standing on the platform. They carried the gasoline in tin cans which they found. While going from the defendant’s premises back to the bonfire they threw gasoline on each other’s clothing. When they reached the bonfire, which was some considerable distance from the defendant’s premises, one of the boys poured some gasoline from a can onto the fire. It flashed up and burned the plaintiff.
This action was brought and has been maintained on the theory that it was negligent for the defendant to leave gasoline in an open milk can at a place where boys were in the habit of going. The gasoline left in the milk can came from the drippings from hose used in filling the truck tanks. There was evidence from which the jury might have found that boys on other occasions had taken gasoline from this open can and that they had used it to start fires on sticks. A woman who lived in a house nearby had driven boys away. There was a path, used by boys, extending from the railroad track, and Mr. Marcus, the president of the defendant company, on two occasions had seen boys playing around the tanks. The jury might have found that Mr. Langmaid, the superintendent in charge of the tanks, knew or should have known that boys were in the habit of going there.
It is urged by the respondent that men of ordinary prudence would not, under such circumstances, permit a can of gasoline to remain exposed and unprotected on the platform, with the top of the can off. The trial court left it to the jury to say whether or not the defendant exercised the care and prudence of a careful person under the circumstances; also, whether or not, under the circumstances, the situation constituted a nuisance.
It is urged by the appellant that the motion for a nonsuit should have been granted and that the court should have held as a matter of law that the plaintiff had failed to make out a cause of action; that the plaintiff was either a trespasser or a bare licensee, and that the defendant owed him no duty of affirmative care.
It is conceded that the plaintiff did not have any business at the tanks and that he went there for the express purpose of taking the gasoline without the consent of the defendant and without its knowledge. It is urged that under those circumstances the defendant owed him no affirmative duty. Undoubtedly that is the general rule. (Vaughan v. Transit Development Co., 222 N. Y. 79.)
However, the respondent contends that such rule has no application to the facts of this case and seeks to sustain the verdict on [585]*585the authority of Travell v. Bannerman (174 N. Y. 47). In that case the defendant was a manufacturer of guns and ammunition. Adjoining his plant there was an inclosed lot in which ammunition and explosives were kept. Outside of the inclosure was a vacant lot, also owned by the defendant, on which ashes and waste material were dumped. That open lot was used by boys for a playground and they .rummaged in the ash heaps for scraps of brass and other things of that kind to sell. Two boys picked up a piece of black material resembling asphalt, imbedded in which were pieces of brass. They took it out into the street where the plaintiff, also a boy, was standing and attempted to extract the brass by pounding. That caused an explosion and the plaintiff was injured. The jury found that the defendant had negligently placed the explosive in the open lot and rendered a verdict 'for the plaintiff. The judgment was affirmed at the Appellate Division by a divided court (71 App. Div. 439). Judge Werner, writing for the Court of Appeals, held that there was no evidence in the case that the defendant’s employees had placed the explosive in the vacant lot, and the Appellate Division was reversed on that ground alone. In the course of the opinion he said: “If there is such evidence [that the defendant’s employees placed the explosive in the vacant lot] then the question of the defendant’s alleged negligence was properly submitted to the jury as one of fact.”
It is upon that statement in the opinion that the respondent relies to affirm the judgment in the case at bar. The Appellate Division in that case placed its decision upon the ground that the explosive placed in the rubbish heap fell within the description of a dangerous and enticing machine, referred to in the opinion in the case of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301), the turntable case. That is, the Appellate Division put it in the same class with a loaded gun or a spring gun, and held that the decision in the turntable case did not apply as that case was decided upon the ground of a defect in the premises. It will be noticed that the placing of the explosive in the ash heap was not a part of the regular conduct of the business of the defendant. In the turntable case the court laid stress on the fact that the defendant was engaged upon its own land, doing that which was necessary to be done in order to carry on the business properly, and held that under those circumstances the defendant was not liable for an injury to a child who came upon the land for recreation or other purposes not connected with the defendant’s business. In that case the opinion in 78 Hun, 1, shows that children were in the habit of playing around the turntable as the evidence here shows that children were in the habit of going to. the tanks. In this case the defendant was storing gasoline in the milk [586]*586can in the ordinary and regular conduct of its own business upon its own land and the plaintiff was not there for the purpose of transacting business with the defendant but was there for the purpose of unlawfully taking the gasoline. If we apply the reasoning of the opinion in the turntable case, there can be no recovery.
I do not find that the principle decided in the turntable case has ever been overruled in this State, and I think the facts in this case fall within the rule laid down in that case rather than within the principle announced in the case of Travell v. Bannerman.
The holding in the case of Hall v. New York Telephone Co. (214 N. Y. 49), where the employees of the defendant left a bottle of denatured alcohol beside the road which was taken by two boys to set a fire and one was injured, and the case of Perry v. Rochester Lime Co. (219 id. 60), confirm that opinion.
In the case of Hall v. International Railway Co. (184 App. Div. 925; affd., 227 N. Y. 619), no opinion was written either at the Appellate Division or in the Court of Appeals. The facts in that case were as follows: A boy six years of age, with other boys, went to the yard of the defendant company where trolley cars were kept immediately adjacent to a street. They played around there. It appeared that they played there before and had moved cars before.
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Hubbs, J.:
The defendant owns and operates two large oil tanks, situate one hundred and twenty-five feet from the street on an open lot in the city of Olean. One of the tanks is used for gasoline. There is a private right of way leading to the tanks which is used by vehicles. Delivery tanks are filled from these large tanks. In front of the tanks there is a wooden platform twelve or fifteen feet long and six feet wide. The tanks are contained in a depression in the ground but they are not inclosed by a wall, fence or building.
[584]*584On October twenty-second the plaintiff, nine years of age, with two other small boys of about the same age, built a bonfire. They then went to the premises of the defendant and took some gasoline from a milk can standing on the platform. They carried the gasoline in tin cans which they found. While going from the defendant’s premises back to the bonfire they threw gasoline on each other’s clothing. When they reached the bonfire, which was some considerable distance from the defendant’s premises, one of the boys poured some gasoline from a can onto the fire. It flashed up and burned the plaintiff.
This action was brought and has been maintained on the theory that it was negligent for the defendant to leave gasoline in an open milk can at a place where boys were in the habit of going. The gasoline left in the milk can came from the drippings from hose used in filling the truck tanks. There was evidence from which the jury might have found that boys on other occasions had taken gasoline from this open can and that they had used it to start fires on sticks. A woman who lived in a house nearby had driven boys away. There was a path, used by boys, extending from the railroad track, and Mr. Marcus, the president of the defendant company, on two occasions had seen boys playing around the tanks. The jury might have found that Mr. Langmaid, the superintendent in charge of the tanks, knew or should have known that boys were in the habit of going there.
It is urged by the respondent that men of ordinary prudence would not, under such circumstances, permit a can of gasoline to remain exposed and unprotected on the platform, with the top of the can off. The trial court left it to the jury to say whether or not the defendant exercised the care and prudence of a careful person under the circumstances; also, whether or not, under the circumstances, the situation constituted a nuisance.
It is urged by the appellant that the motion for a nonsuit should have been granted and that the court should have held as a matter of law that the plaintiff had failed to make out a cause of action; that the plaintiff was either a trespasser or a bare licensee, and that the defendant owed him no duty of affirmative care.
It is conceded that the plaintiff did not have any business at the tanks and that he went there for the express purpose of taking the gasoline without the consent of the defendant and without its knowledge. It is urged that under those circumstances the defendant owed him no affirmative duty. Undoubtedly that is the general rule. (Vaughan v. Transit Development Co., 222 N. Y. 79.)
However, the respondent contends that such rule has no application to the facts of this case and seeks to sustain the verdict on [585]*585the authority of Travell v. Bannerman (174 N. Y. 47). In that case the defendant was a manufacturer of guns and ammunition. Adjoining his plant there was an inclosed lot in which ammunition and explosives were kept. Outside of the inclosure was a vacant lot, also owned by the defendant, on which ashes and waste material were dumped. That open lot was used by boys for a playground and they .rummaged in the ash heaps for scraps of brass and other things of that kind to sell. Two boys picked up a piece of black material resembling asphalt, imbedded in which were pieces of brass. They took it out into the street where the plaintiff, also a boy, was standing and attempted to extract the brass by pounding. That caused an explosion and the plaintiff was injured. The jury found that the defendant had negligently placed the explosive in the open lot and rendered a verdict 'for the plaintiff. The judgment was affirmed at the Appellate Division by a divided court (71 App. Div. 439). Judge Werner, writing for the Court of Appeals, held that there was no evidence in the case that the defendant’s employees had placed the explosive in the vacant lot, and the Appellate Division was reversed on that ground alone. In the course of the opinion he said: “If there is such evidence [that the defendant’s employees placed the explosive in the vacant lot] then the question of the defendant’s alleged negligence was properly submitted to the jury as one of fact.”
It is upon that statement in the opinion that the respondent relies to affirm the judgment in the case at bar. The Appellate Division in that case placed its decision upon the ground that the explosive placed in the rubbish heap fell within the description of a dangerous and enticing machine, referred to in the opinion in the case of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301), the turntable case. That is, the Appellate Division put it in the same class with a loaded gun or a spring gun, and held that the decision in the turntable case did not apply as that case was decided upon the ground of a defect in the premises. It will be noticed that the placing of the explosive in the ash heap was not a part of the regular conduct of the business of the defendant. In the turntable case the court laid stress on the fact that the defendant was engaged upon its own land, doing that which was necessary to be done in order to carry on the business properly, and held that under those circumstances the defendant was not liable for an injury to a child who came upon the land for recreation or other purposes not connected with the defendant’s business. In that case the opinion in 78 Hun, 1, shows that children were in the habit of playing around the turntable as the evidence here shows that children were in the habit of going to. the tanks. In this case the defendant was storing gasoline in the milk [586]*586can in the ordinary and regular conduct of its own business upon its own land and the plaintiff was not there for the purpose of transacting business with the defendant but was there for the purpose of unlawfully taking the gasoline. If we apply the reasoning of the opinion in the turntable case, there can be no recovery.
I do not find that the principle decided in the turntable case has ever been overruled in this State, and I think the facts in this case fall within the rule laid down in that case rather than within the principle announced in the case of Travell v. Bannerman.
The holding in the case of Hall v. New York Telephone Co. (214 N. Y. 49), where the employees of the defendant left a bottle of denatured alcohol beside the road which was taken by two boys to set a fire and one was injured, and the case of Perry v. Rochester Lime Co. (219 id. 60), confirm that opinion.
In the case of Hall v. International Railway Co. (184 App. Div. 925; affd., 227 N. Y. 619), no opinion was written either at the Appellate Division or in the Court of Appeals. The facts in that case were as follows: A boy six years of age, with other boys, went to the yard of the defendant company where trolley cars were kept immediately adjacent to a street. They played around there. It appeared that they played there before and had moved cars before. The power was on and all that it was necessary to do to move a car was to change the position of the control lever. One of the boys started a car and the plaintiff’s intestate was killed. The only question submitted to the jury was whether or not the deceased and the other boys were on the defendant’s private premises or were in a street. The jury found that in favor of the defendant. The case was tried before Mr. Justice Sears and in the charge he said: “On a man’s own property the only duty which he owes to a trespasser or to a bare licensee — and this young Edwin Hall was either a trespasser or a bare licensee — is not to intentionally injure that person, not to set traps, spring guns or traps to catch the person intentionally if he should come there and not actively by any act of commission negligently to injure such person.” An exception was taken by the defendant and the question was raised in this court and in the Court of Appeals. It is difficult to see why the holding in that case is not a direct authority in favor of the defendant in this case. There we have the fact of the boys having been in the habit of playing around the cars and that they had moved cars before, so it cannot be said that the defendant could not anticipate that the boys would do just what they did do. Mr. Justice Sears, in the charge, narrows the question of the defendant’s liability down to the same position taken by the court in the turntable case.
[587]*587I think, in view of these decisions, that we are bound to hold that the plaintiff failed to make out a cause of action. It is urged, however, that the Court of Appeals, by certain expressions in its opinions, has left the question open. For instance, in the Perry case the court said: “ Nothing in our ruling is in conflict with the recognition of a duty to protect the young and heedless from themselves, and guard them against perils that may reasonably be foreseen. To define the orbit of that duty is unnecessary now. [Citing cases.] It is enough to assume that there are times and circumstances that will call the duty into play.”
In Hall v. New York Telephone Co. the court said: “Neither was it such an apparatus or article as would induce or allure children to play with it.”
Here there is evidence that this open can of gasoline did allure children and that they had been taking it for sometime previous to this accident. It is contended that the facts in this case distinguish it from the Perry and Hall v. New York Telephone Co. cases, but certainly the facts do not distinguish it from the turntable case, for in that case there was evidence that children were in the habit of playing with the turntable. I am of the opinion that we should follow the holdings in the four cases referred to. In Hynes v. N. Y. C. R. R. Co. (231 N. Y. 229) the Court of Appeals again seem to concede the rule to be as stated by Mr. Justice Sears, in the charge to the jury hereinbefore quoted.
The trial court submitted to the jury the question of the defendant’s negligence growing out of the violation of section 302 of the General Business Law, which provides for the kind of structure to be used where oil or its products are kept for sale or are stored in a city. I do not think that section has anything to do with this case. The purpose of that section was not to protect one in the position of the plaintiff and there was no causal connection between the violation of the statute and the happening of the accident. It is quite apparent that that statute was adopted to prevent the overflowing and spreading of oil from the place where it may be stored. Here the accident happened a long distance from the place where the gasoline was stored. (Di Caprio v. N. Y. C. R. R. Co., 231 N. Y. 94.)
The judgment should be reversed, with costs, and the complaint dismissed, with costs.
All concur, Sears, J., in a separate memorandum, except Davis, J., who in a separate memorandum concurs for reversal, but dissents from the dismissal of the complaint and votes for granting a new trial.