The plaintiff owns certain premises in the city of Hew York, which were injured by blasting done on premises adjoining. She brought this action to restrain the defendant from continuing the acts which had injured her property, and, incidentally, to recover the damages theretofore sustained.
The complaint alleged that the defendant was a contractor engaged in removing rock from the adjacent premises, and by reason of the reckless and negligent manner in which he was doing the work plaintiff had been damaged. The judgment demanded was that the defendant be enjoined from continuing his unlawful acts, and for damages. The answer was substantially a general denial.
It appeared that after the commencement of the action an injunction pendente lite was obtained, and thereupon the acts complained of ceased ; nevertheless the action was retained for the purpose of determining defendant’s liability and plaintiff’s damage, and the case was tried by consent at the Special Term.
At the trial plaintiff gave proof tending to show that she had sustained substantial damage, caused by the negligent prosecution of the work on the adjacent lot. This proof was not contradicted by the defendant, nevertheless the complaint was dismissed upon the ground that “ the wrong Dempsey has been made defendant; ” in other words, that the defendant’s son, and not the defendant himself, was the contractor under whom the blasting was done.
The judgment appealed from cannot be sustained. If it be conceded that the contract to do the excavating upon the adjoining lot was in fact in the name of the defendant’s son, under the proof presented it does not aid the defendant dr shield him from liability. The allegation in the complaint that the defendant was the contractor is immaterial. The material part of it is that the plaintiff’s property had been injured by the unlawful acts of the defendant. If this was true, then the plaintiff was entitled to recover, irrespective of the capacity in which he acted. I take it no one would *158seriously contend but that a superintendent, a day laborer or a mere volunteer, who negligently used or procured others to use high explosives, and thereby injured the adjacent property of another, would be liable to respond in damages to such other person ; and if all of them participated in such unlawful acts, they would be jointly or severally liable for the wrong. (Hawkesworth v. Thompson, 98 Mass. 77; Wright v. Wilcox, 19 Wend. 343; Murray v. Usher, 117 N. Y. 542; Phelps v. Wait, 30 id. 78.)
A fair consideration of defendant’s own testimony shows that he was the superintendent; that he took charge of the work and directed what was done for his son. If this be true, then he was liable under the authorities above cited and every principle of law of which I am aware applicable to the subject. The defendant was not only the superintendent, but the uncontradicted proof shows that, while not the contractor in name, he was so in fact. He furnished all the tools and appliances with which the work was done ; furnished all the money to pay the men employed; and received from the person with whom the contract was made the contract price, which was put into his bank account. He had never had any accounting with the son as to the amounts received or paid out, and did not know whether he had ever kept any books of account between himself and son, or whether or not he owed the son anything. The son was unmarried, lived with the father, and did not attend as a witness, though subpoenaed by the plaintiff. There is nothing to connect the son with the work, outside of the fact that the contract was in his name, as were also the applications to the bureau of combustibles for a permit to proceed with the blasting, a bond of indemnity in connection therewith, and the permit therefor. The proof fairly showed that the defendant not only took charge of the work and directed what was done, but was also the real contractor, and findings to the contrary are against evidence.
Upon both grounds, therefore, I think the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, J., concurred.
Judgment affirmed, with costs.