The widening of the appellant’s railroad tracks in the city of Mount Vernon was being done by a contractor under a written contract with the appellant. Eock had to be blasted in the work by the contractor. The contractor used dynamite for this purpose. One hundred and five pounds of it in a box at a point on the work exploded, and the shock injured' the plaintiff in her house near by. She brought this action for damages against .both the contractor *489and the railroad company (the appellant), and got a verdict of $500 against both. There is no evidence that the appellant had anything to do with .the dynamite. It was brought on the work for necessary use by the contractor. The cause of the explosion is unknown. The learned trial judge also erred in his charge in respect of the city ordinance. In sum and substance it makes it unlawful “ to have or keep ” dynamite, or other explosives named, in any. place in the city, except in magazines erected • for the purpose according to plans approved by the fire commissioners and under a license from the mayor. . The “ storing ” of such explosives except under such a license is subjected to: a penalty. The refusal of the learned trial- judge to charge that this ordinance did not ' apply to the case was error. It only applies to the storing of explosives to be taken out and used elsewhere, and not to explosives along- the line of a work for immediate use, as was the case here.
The judgment should be reversed.
Woodward, Hooker and "Rich, JJ., concurred; Hirschberg, F. J„ concurred on first ground stated in opinion.
Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event. ..