This action was brought to recover damages to the plaintiff's house in the city of New York under the following circumstances: One Henry owned a rocky lot adjoining the plaintiff's house, and in May, 1891, he entered into a written contract with the respondents, whereby they agreed to build a house for him upon his lot, which contract contained the following clause: "And the parties of the second part further agree to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passer-by during the performance of said work." Subsequently the respondents entered into contract with one Dolan to do the rock and earth excavation requisite for the building of Henry's house, which contract contained the following clause: "The said Dolan hereby assumes all responsibility for any loss or damage which may occur to persons or property while he or his employees are engaged in the performance of such work, and hereby agrees to save the said Jacob Vix and sons harmless from the payment of any such loss during the progress of the work." Dolan entered upon the performance of his contract, and in blasting the rock upon Henry's lot caused the damage to the plaintiff's house which is complained of in this action.
There was evidence tending to show that the damage to the plaintiff's house was caused by the negligent manner in which Dolan conducted the blasting of the rock, and there was also evidence from which the jury might have found that some damage might have been done to the plaintiff's house if the blasting had been done with the utmost care. The trial judge, in submitting the case to the jury, charged that the plaintiff was in any event entitled to a verdict, and that the only question for their consideration was the amount of damages. He reached this conclusion by holding that the respondents had, by the clause in their contract above quoted, indemnified Henry against these damages, and that as Henry was liable to *Page 93 the plaintiff, to prevent circuity of actions she could commence her action directly against them as indemnitors. The jury having rendered a verdict for the plaintiff, the judge directed the respondents' exceptions to be heard in the first instance at the General Term. There the exceptions were sustained and a new trial was granted on the ground, in substance, that it did not conclusively appear that the work which Henry contracted to have done would necessarily cause damage to the plaintiff's house; that the damage may, therefore, have resulted from the careless manner in which the work was done by Dolan, an independent contractor, which, under the case of McCafferty v. SpuytenDuyvel R.R. Co. (61 N.Y. 178) and other cases, imposed no liability upon Henry, and that, therefore, as he was not liable, the respondents, as his indemnitors, were not liable for these damages.
There was no claim upon the trial, and no contention upon the argument before us that the respondents could be made liable for damage caused by the mere carelessness of Dolan in blasting the rock, and so far as the damage to the plaintiff's house was due to mere carelessness, that may be eliminated from the case. Nor can Henry or any one working under him be made liable for damages which were the inevitable consequence of the blasting. The case of Booth v. Rome, W. O.T.R.R. Co. (148 N.Y. 267) had not been decided when this case was under consideration in the courts below. There, after the fullest consideration, in an opinion carefully reviewing the authorities which leaves nothing to be said, we laid down the doctrine that one who in the reasonable use of his land blasts rocks thereon with due and proper care, is not liable for the inevitable damage caused thereby to neighboring property. We see no reason for re-considering the points decided in that case, and it must be regarded as a precise authority for the respondents unless they can be held liable for these damages by virtue of the clause in their contract above quoted; and whatever view may be taken of that clause it cannot impose liability upon them. If it be treated as a contract of indemnity it could impose no liability because *Page 94 Henry not being liable there was nothing to call the indemnity into operation. The indemnitors could not be liable unless the party to be indemnified became liable. If it be claimed that this clause in the contract was intended for the benefit of the plaintiff, and that, therefore, she can enforce it, there are two answers to such a claim. It cannot be said that it was inserted for her benefit. The parties did not intend to provide indemnity against damages for which they were in no way liable. The sole purpose of the clause was the indemnity of Henry, and he alone, or some one in his right could in a proper case enforce it. But even if it could be held that the contract contained in this clause was intended for the plaintiff's benefit, she was not a party to the contract nor in privity therewith, and as to her it was wholly without consideration. As Henry could not, under any circumstances, become liable for these damages, either on the ground of careless blasting or of inevitable damage, the case ofVrooman v. Turner (69 N.Y. 280) is an authority for holding that the plaintiff cannot sue upon and enforce the contract.
Our conclusion, therefore, is that the order of the General Term should be affirmed, and judgment absolute rendered against the plaintiff, with costs.
All concur.
Ordered accordingly.