Scullin v. Dolan

4 Daly 163

• Court: New York Court of Common Pleas
• Decided: November 15, 1871
• Status: Published

Opinion

By the Court.

*—Labremore, J.

—The evidence in this ease fails to establish any liability on the part of the defendant, - and would have justified a peremptory instruction to that effect by the court below. There can be no doubt that the owner is responsible for his negligence either in constructing or upholding the freehold (Eakin v. Brown, 1 E. D. Smith, 36), but for the negligent use of it by others, he cannot be made liable. He has met the requirements of the law when each and every part of the building is properly and securely adapted to its particular use.

It is not shown that the chimney in question was unfit for the purpose for which it was intended, and the improper and unauthorized use of it for any other purpose, whereby a third party was injured, cannot create a liability on the part of the owner.

I think the exceptions upon this point were well taken, and that the defendant should have judgment in his favor.

Judgment for defendant.

Present, Daly, Ch. J., Robinson and Labbemobe, JJ.