Thomas Doyle, Appellant, v. The Rector, Wardens and Vestrymen of Trinity Church Corporation in the City of New York, Respondents

Thomas Doyle, Appellant, v. The Rector, Wardens and Vestrymen of Trinity Church Corporation in the City of New York, Respondents. (Argued January 14, 1890; decided January 28, 1890.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 9, 1887, which affirmed a judgment in favor of defendants, entered upon a verdict directed by the court. This action was brought to recover for services in sinking an artesian well for defendants. The main question involved was whether defendants were liable to pay for certain damages caused by an explosion in the well before its completion. The memorandum of decision is as follows: “ It was error to permit Mr. Cruger to testify that some one told him that one of the torpedoes 'was exploded just below the surface of the rock and so injured the well. The fact, if relevant, as it was deemed to be, to the question whether exploding the torpedo at this point was a negligent act, should have been proved by competent evidence or not at all. “ It was error to rule, as a question of law, that Fotli acted, and was actually or apparently authorized to act, as the agent of Button in employing Seagul to explode the torpedoes, which question should have been submitted to the jury as one of fact, fact.. “ For these errors the judgment should be reversed and a new trial granted, with costs to abide the event.” L. A. Fuller for appellant. Charles L. Jones for respondents. [MAJORITY — Follett, Ch. J.,] Follett, Ch. J., reads mem. for reversal and new trial. All concur. Judgment reversed.