Struve v. Droge

New York Court of Common Pleas

Struve v. Droge

62 How. Pr. 233, 10 Abb. N. Cas. 142

New York Court of Common Pleas·Decided November 15, 1881·Published

Opinion

Van Hoesen, J.

— The plaintiff’s rooms were not on fire, though the defendant supposed they were. (The defendant, who occupied adjacent apartments, broke into the plaintiff’s room, and in doing so committed some damage, to recover for which this action is brought) The sole question is, is he liable ? The law seems to be this, that in a case of public necessity, to prevent the spreading of a fire, any individual may demolish a building without being responsible, in trespass or otherwise. If, however, such public necessity does not exist, and in point of fact there is no need of the destruction, the person who commits the act is responsible in [237] damages. (Addison on Torts [Dudley & Baylis ed.], p. 1306).

In the Mayor of New York agt. Lord (18 Wend., 132) V chancellor Walworth said “ that when it became necessary to destroy the property of an individual to prevent the ravages of a fire, the persons who did the destructions were protected from personal responsibility where they could show that the destruction of the property was necessary to produce the effect, but that they were, by the common law, bound at their peril to decide correctly as to such necessity to protect themselves from liability to make good the loss.” " f

In Taylor agt. Plymouth (8 Metc., 462) chief Justice Shaw uses language of the same import. If this be the law, it follows that the judgment of the district court must be reversed. I am aware that an argument may be framed to support the proposition that the person who does the injury should be protected if he breaks into a house under such circumstances that a jury could say he had good and reasonable ground for believing that there was a fire in it likely to get headway to adjoining property, even though it might afterward appear that there was in fact no fire, and that he had been deceived by appearance. Such an argument might possibly find some support in the case of the People agt. Shorter (2 N. Y, 193).

Judgment reversed.

Joseph JF. Dalt, J., concurred.

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Van Hoesen, J.

— The plaintiff’s rooms were not on fire, though the defendant supposed they were. (The defendant, who occupied adjacent apartments, broke into the plaintiff’s room, and in doing so committed some damage, to recover for which this action is brought) The sole question is, is he liable ? The law seems to be this, that in a case of public necessity, to prevent the spreading of a fire, any individual may demolish a building without being responsible, in trespass or otherwise. If, however, such public necessity does not exist, and in point of fact there is no need of the destruction, the person who commits the act is responsible in [237] damages. (Addison on Torts [Dudley & Baylis ed.], p. 1306).

In the Mayor of New York agt. Lord (18 Wend., 132) V chancellor Walworth said “ that when it became necessary to destroy the property of an individual to prevent the ravages of a fire, the persons who did the destructions were protected from personal responsibility where they could show that the destruction of the property was necessary to produce the effect, but that they were, by the common law, bound at their peril to decide correctly as to such necessity to protect themselves from liability to make good the loss.” " f

In Taylor agt. Plymouth (8 Metc., 462) chief Justice Shaw uses language of the same import. If this be the law, it follows that the judgment of the district court must be reversed. I am aware that an argument may be framed to support the proposition that the person who does the injury should be protected if he breaks into a house under such circumstances that a jury could say he had good and reasonable ground for believing that there was a fire in it likely to get headway to adjoining property, even though it might afterward appear that there was in fact no fire, and that he had been deceived by appearance. Such an argument might possibly find some support in the case of the People agt. Shorter (2 N. Y, 193).

Judgment reversed.

Joseph JF. Dalt, J., concurred.

Struve v. Droge, 62 How. Pr. 233, 10 Abb. N. Cas. 142 (N.Y. Super. Ct. 1881).

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