The liability, which is sought to be established as against the defendant is predicated solely upon the judgment recovered in the Shea action, the record in which, including the testimony, was offered in evidence by the City of New York, that from it might *350be'ascertained, “the subject-matter and to fix the, scope of the thing adjudged.” The complaint in that action set forth the passage by the board of aldermen of the resolution of October 21, 1902, and the necessary steps had to make the same operative, including the transmission of a copy thereof to the police department. It further alleged the discharge of dangerous fireworks by a political association on November 4, 1902, under authority of said resolution, along and upon Madison avenue, in the city of New York, as the result of which an explosion occurred, causing, the death of plaintiff’s intestate. It was further alleged, upon information and belief, “ that.the death of said Dennis Shea was caused solely by and through the wrongful and unlawful acts of the defendant [i. e., The City of New York] in authorizing, encouraging, aiding, procuring and permitting the. discharge of said dangerous fireworks, at the time and place aforesaid.” ■
The learned trial justice charged the jury in part as follows: “ Was it a nuisance, a wrongful act, on the part of the City, to permit such a display upon a public street .where so vast a concourse of people was assembled ? Whether a nuisance or not is to be determined from the'nature of the display and the surrounding circumstances. What might be rightful in one place in the City under given circumstances might be wrongful in another place and under different conditions. The- peo'ple had a right to use the public streets and parks, and the City was bound to -exercise reasonable care in keeping them reasonably safe for the use and enjoyment of the people. According to the-undisputed testimony, thousands of people, sixty to seventy-five thousand, were assembled at this point in this neighborhood. Was it reasonable care upon the part- of the City to permit under, the.circumstances disclosed a fireworks display embracing firing from mortars? Was danger to be' reasonably apprehended under the circumstances? It was not a necessary use of the streets by the City for the performance of any public work. Was the permission given by the City under the circumstances, wrongful? ‘Fireworks exhibited on an -extensive scale in a great thoroughfare in the midst of a large city where a vast multitude of people is assembled, if not a nuisance as a matter of law, may properly be found to be such as a matter of fact.’* That proposition- is *351the language of the Court of Appeals. It is claimed by the City that the discharge of fireworks of the character discharged on this night have been, shown to have been frequently given without disaster or mishap of any kind, but plaintiff urges that allowing such use to be made of the streets under the circumstances was wrongful, for the reason that it was unnecessary and that it permitted this display in the crowded streets near the center of the largest city o'f the continent where any misadventure in managing the discharge would be likely to result in injury to persons and property.”
There had been no question of negligence in the conduct of the fireworks display in question. There is not a suggestion thereof in the Shea record, nor was it referred to in the pleadings or in the judge’s charge. ■ The question submitted to the jury was not one of negligence. It was solely one of nuisance. And it was not one of a nuisance based upon the method of execution of the permission given under the resolution, nor based upon technical consent to the display in question. Upon the issues presented to thé jury, their verdict for the' plaintiff in that suit determined that the display in .question constituted in fact a nuisance, in the creation of which the city of New York had been an active participant by the granting of a wrongful permission under which fireworks could be set off in any particular place and by not merely failing to interfere but by affirmative acts resulting in permitting the display to be given under the resolution in the very place in which it was given (which was a dangerous place), and under the control of the police department, to whom the city had delegated the duty of establishing the restrictions and safeguards which might be deemed necessary. It is not claimed that these restrictions and safeguards were disregarded or violated by the present defendant. It seems clear to me that the city of New York and the defendant Hearst, upon the record in the Shea case, must be deemed to have been in pari delicto, in which situation there can be neither indemnity nor contribution between the joint wrongdoers. (Trustees of Geneva v. Brush Electric Co., 50 Hun, 581; 28 N. Y. St. Repr. 284; affd., 130 N. Y. 670.) I believe, therefore, that the present judgment should be affirmed, with costs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.
See Landau v. City of New York (180 N. Y. 55).—[Rep.