#### Joseph F. De Moll, Appellant, *v.*City of New York, Respondent.

Second Department,

July 31, 1914.

Municipal corporations — city of New York — action for personal injuries — failure to allege filing of notice of intention to sue pursuant to chapter 572 of the Laws of 1886 — nuisance.

A complaint in an action against the city of New York by an engineer in the fire department to recover for personal injuries claimed to have been sustained by an explosion while examining the pipe projecting from a gasoline tank, which alleges the maintenance by the defendant below the surface of the ground of a tank for the storage of a limited quantity of gasoline, and also of a drain for surface water by absorption or percolation, does not state a cause of action for a nuisance.

The failure of a plaintiff in an action against the city of New York to recover for personal injuries based on negligence to allege the filing with the corporation counsel of a notice of intention to sue within six months after the cause of action accrued in compliance with chapter 572 of the Laws of 1886, is fatal, but such statute does not apply to actions for a nuisance:

Appeal by the plaintiff, Joseph F. De Moll, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of November, 1913, upon a dismissal of the complaint by direction of the court at the opening upon a trial before the court and a jury.

*Jeremiah T. Mahoney*[ *Warren C. Fielding with*him on the brief], for the appellant.

*James D. Bell [Frank Julian Price*and *Frank L. Polk*with him on the brief], for the respondent.

Stapleton, J.:

. The plaintiff, an automobile engineman employed in the fire department of the city of New York, sued the city to recover damages for personal injuries. His complaint was dismissed upon defendant’s motion, made at the opening of the trial.

The complaint failed to allege that the notice of intention to commence an action for damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, and of the time and place where the injuries were *677received, had been filed with the corporation counsel within six months after the cause of action accrued.

Chapter 572 of the Laws of 1886 declares that no such action shall be maintained unless such a notice has been filed.

It has been held that the failure to allege the filing of the notice in the complaint is fatal. *(Mertz*v. *City of Brooklyn,*33 N. Y. St. Repr. 577; affd. *sub nom. Merz*v. *City of Brooklyn,*128 N. Y. 617; *Curry*v. *City of Buffalo,*135 id. 366; *Foley*v. *Mayor, 1*App. Div. 586.)

If the complaint states no cause of action except one for damages for personal injuries alleged to have been sustained by reason of negligence, the judgment must stand.

The plaintiff insists, however, that he has pleaded a cause of action in nuisance, to which, he asserts, the statute does not apply. We are bound to agree that the plain language of the statute makes it inapplicable to actions founded upon nuisance.

But does he plead a nuisance? He uses the word “nuisance” as a characterization; but this is insufficient. The pleader must state the facts. He states no facts which show a public nuisance from which he has suffered special damage. Does he state facts which constitute a private nuisance ? What is a private nuisance ?

In Swords v. *Edgar*(59 N. Y. 28, 34) the court said: “For a private nuisance is anything unlawfully or tortiously done to the hurt or annoyance of the person, as well as the lands, tenements and hereditaments of another. (3 Blk. Com. by Sharswood, 215.) ”

In *Hogle*v. *Franklin Manufacturing Co.*(199 N. Y. 388, 396) the court said: “In a recent case, without attempting a general definition of a nuisance, we said that 1 if the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as matter of fact; but if the act in its inherent nature ti so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should he held a nuisance as matter of law.’ *(Melker*v. *City of New York,*190 N. Y. 481, 488.) ”

In *McCluskey*v. *Wile*(144 App. Div. 470, 473) this court, in the First Department, said: “ Nuisance involves the element of *678positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission.”

The plaintiff alleges that the defendant, upon its own property, a private alleyway, at a place remote from the public street, maintained a cesspool or drain for the purpose of drawing off the water which would accumulate because of the conformation of the surface of the alley way. The drain consisted of holes, bored through the flagging, through which the water could run. The drain had no connection with an outlet, and the surface water percolated through the soil beneath the flagging. At intervals, for three years prior to the casualty, the water, through the faulty system of drainage, remained collected for many days before being finally absorbed. This condition arose generally through the holes becoming clogged. Of this condition the defendant had knowledge.

The defendant also maintains upon its property, below the surface, a tank for storing gasoline. The tank has a capacity of about 120 gallons. It is connected with a pipe that has an outlet at the front of the building erected on defendant’s premises. Leading up from the tank is a cap or pipe that projects above the surface of the alleyway. We will now adopt plaintiff’s words: “While acting in the lawful performance of his duties, pursuant to an order from a superior officer of .the Fire Department of the City of New York, the plaintiff was, on or about the 17th day of June, 1910, in the said alleyway, making an examination of the projecting pipe of the aforesaid gasolene tank, and, though acting with all due care, was severely burned by an explosion and fire which extended over the whole of the surface of the said accumulated water in the alley. * * * Baid explosion was due to the fact that on the day in question there was water in said alleyway, which, through defendant’s negligence and carelessness, had remained therein for several days, and there had been permitted, through the negligence of the defendant in failing to remove'said water and in properly attending to said gasolene tank, some gasolene to escape from said tank in a manner unknown to plaintiff, and which spread over the surface of said accumulated water in such manner as not to be apparent or observed by plaintiff or any one entering said alleyway or area for lawful purposes, *679and said gasolene existing, as above stated, without any warning, became ignited and exploded, and the flames therefrom filled the entire alley or areaway, came in contact with plaintiff, burned him and caused the damages and injuries described herein. Said fire and explosion occurred and said injuries were received without any negligence on the part of the plaintiff, but were solely due to nuisance created as aforesaid.”

The maintenance upon private premises, below the surface of the ground, of a tank for the storage of a limited quantity of gasoline, is not, in and of itself, such an unreasonable, unwarrantable or unlawful use of defendant’s property as would constitute a nuisance; nor is the maintenance, upon private property, of a drain for surface water by absorption or percolation; nor is the co-existing combination of both tank and drain.

The facts do not present a case of a lawful creation becoming a nuisance through the wrongful use of it.

The structures we are considering and the use to which they were put do not suggest the presence of that element of wrongdoing, as distinguished from negligence, which is essential to the establishment of a charge of nuisance. The natural tendency of the acts of the defendant of which the plaintiff complains is not to create danger and inflict injury upon person or property. They do not, therefore, permit the finding of a nuisance as a matter of fact.

It is useless to discuss, as it is unnecessary to decide, whether there was negligence in permitting the gasoline to escape and mingle with the accumulated water in such quantities as to render the combination susceptible of ignition, and if there was negligence, whether it was actionable in favor of the plaintiff against the city in view of a rule which exempts municipal corporations from liability for damages where the municipality is engaged in a governmental as distinguished from a corporate function.

I advise an affirmance of the judgment, with costs.

Present — Jerks, P. J., Burr, Rich, Stapletor and Putrah, JJ.

Judgment unanimously affirmed, with costs.