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ANTHONY T. ANNUTTO ET AL. v. VILLAGE HERKIMER (12/12/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


December 12, 1968

ANTHONY T. ANNUTTO ET AL., RESPONDENTS,
v.
VILLAGE OF HERKIMER, APPELLANT

Appeal from order of Oneida Special Term granting partial summary judgment.

Bastow, P. J., Goldman, Del Vecchio, Marsh and Witmer, JJ.

Memorandum: Special Term in granting plaintiffs partial summary judgment on the issue of defendant's liability held the defendant village to be liable to the plaintiffs for damages caused by trespass resulting from blasting operations. The court's ruling was based on its finding that the blasting of West Canada Creek by the defendant caused ice to be jammed against a bridge structure resulting in flood waters being precipitated on plaintiffs' lands. Such facts are readily distinguishable from those in St. Peter v. Denison (58 N. Y. 416; Hay v. Cohoes Co., 2 N. Y. 159) and Wheeler v. Norton (92 App. Div. 368) all of which enunciate the rule that where there has been a physical trespass by casting of rocks or other debris upon the land of another as a result of blasting, liability follows irrespective of negligence. Here blasting was employed as a means of removing obstructions in the waterway to secure the public safety and the only immediate and direct result of such blasting was the removal of such obstructions. The plaintiffs on the record as it was developed upon the motion for summary judgment do not show an absence of questions of fact as to whether defendant acted prudently and reasonably under all the circumstances so as to permit a determination of liability without a trial.

Disposition

Order insofar as it grants partial summary judgment to plaintiffs unanimously reversed, and otherwise order affirmed, without costs.

19681212

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