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Supreme Court, December, 1917.

(Vol. 102.

MOTION for a peremptory writ of mandamus.

Windels & Holtzoff, for motion.

Lamar Hardy, corporation counsel (George M. Curtis, assistant corporation counsel, of counsel), opposed.

GIEGERICH, J. The petitioner seeks a writ of mandamus for an inspection of the reports of engineers and of other reports, records, papers and documents on file in the office of the commissioner of water supply, gas and electricity relating to the explosion and bursting of a water main which took place in Lafayette street, in the borough of Manhattan, city of New York, on the 21st day of June, 1917, in front of the petitioner's premises and which flooded the basement of those premises and caused damage for which it appears, by the opposing affidavit, the petitioner has commenced an action against the city of New York on the ground of the city's negligence in the construction of the water main referred to. It further appears from the opposing affidavits that the papers which are sought to be examined are reports made by investigators in the department of water supply, gas and electricity, with reference to the subject matter of the action brought by the petitioner against the city, and that prior to the commencement of the action all the papers were transferred from the department of water supply, gas and electricity to the law department, and are now in possession of the corporation counsel for the purpose of defending the pending action. In support of the petition, section 51 of the General Municipal Law, which provides, among other things, as follows: “All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer,

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board or commission acting for or on behalf of any county, town, village or municipal corporation in this state are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer,” and section 1545 of the Greater New York Charter, which, in part, provides as follows: “All books, accounts and papers in any department or bureau thereof, except the police and law departments, shall at all times be open to the inspection of any taxpayer, subject to any reasonable rules and regulations in regard to the time and manner of such inspection as such department, bureau or officer may make in regard to the same, in order to secure the safety of such books, accounts and papers, and the proper use of them by the department, bureau or officer; in case such inspection shall be refused, such taxpayer, on his sworn petition, describing the particular book, account or paper that he desires to inspect, may, upon notice of not less than one day to such department, bureau or officer, apply to any justice of the supreme court for an order that he be allowed to make such inspection as such justice shall by his order authorize, and such order shall specify the time and manner of such inspection,” are relied upon. It will be observed that these two sections are not identical, and that section 1545 excepts books, accounts and papers in the police and law departments. Probably it would need no authority for the proposition that where the terms of the general statute and the special statute are not the same the terms of the special statute would control on the theory that such was the legislative intent in making special provisions for some particular municipality. In Matter of Egan, 205 N. Y. 147, 156, the Court of Appeals seemed to recognize that the provisions of the special statute must be observed. Now in

Supreme Court, December, 1917.

[Vol. 102.

this case, as the papers sought to be inspected are in the law department and properly there, it would seem that section 1545, by its own provisions, defeats the petitioner's claim. Furthermore, the language used in People ex rel. Woodill v. Fosdick, 141 App. Div. 450, 453, seems appropriate in this case, namely: “The section specifically describes what a taxpayer is entitled to inspect and have copies of. They are the books, accounts and papers in any department or bureau thereof,' except the police and law departments. These words clearly refer to the books, accounts and papers showing the transactions of the department or bureau, but not to the information, whether reduced to written form or not, upon which the head of the department or bureau relied in determining upon a course of action." In the present instance, it appears that the reports, records and documents which are sought to be examined are reports made by investigators with reference to the subject matter of the action brought by the petitioner. Within the language above quoted, I do not think the papers to which this application is directed are of the character described and intended by the statute. The motion is therefore denied, with ten dollars costs.

Motion denied, with costs.

Misc.]

Supreme Court, December, 1917.

ANISIM ADZERYCHA, Plaintiff, v. HOLBROOK, CABOT &

ROLLINS CORPORATION, Defendant.

(Supreme Court, New York Trial Term, December, 1917.)

Negligence - allegations of — where the work makes the place — master and servant - actions - evidence - motions and orders.

Where an employee engaged in tunnel excavation is injured by an explosion the prosecution of the work makes the place, and the rule that it is the employer's duty to furnish a safe place to work does not obtain.

Where it appears that the explosion may have been caused by the negligence of a fellow servant the doctrine of res ipsa loquitur does not apply.

Where in a common law action for negligence plaintiff, employed by defendant in the excavation of an underground railroad in the city of New York as a laborer in cleaning-up work after the blast had been exploded, testified that he was directed by the foreman to break up a large rock in which apparently a hole had been drilled; that he objected; that the foreman then extracted some dynamite from the hole in the rock, and on further objection being made took the hammer and struck the rock and then told plaintiff to break it and at the third blow there was a loud explosion and plaintiff became unconscious; and the only allegation of negligence in the complaint is that when plaintiff struck said rock “a charge of dynamite within said rock used for blasting and negligently and carelessly theretofore left unexploded, all of which was known to defendant, did explode," and there was no evidence as to how or by whose fault, if any, the dynamite was put in the rock or failed to explode, defendant's motion to dismiss the complaint, decision upon which was reserved and the case sent to the jury which rendered a verdict in favor of plaintiff, will be granted.

Action for negligence.

Francis X. Wazeter (William J. Carey, of counsel), for plaintiff.

Benjamin Patterson, for defendant.

Supreme Court, December, 1917.

[Vol. 102.

PENDLETON, J. Where an employee employed in tunnel excavation is injured by an explosion, the prosecution of the work makes the place, and the rule that it is the employer's duty to furnish a safe place to work does not obtain. To such a case the principle of res ipsa loquitur has no application, as the explosion may have been caused by the negligence of a fellow-servant.

On plaintiff's evidence defendant moved to dismiss the complaint, and again at the end of the case. Decision on both motions was reserved and the case sent to the jury. Plaintiff recovered a verdict and the motions to dismiss must now be decided.

Plaintiff was employed by defendant in the excavation of the underground railroad in the city of New York as a “mucker," that is, a laborer engaged in general cleaning-up work. In prosecuting this tunnel work other employees drilled the holes, placed the dynamite charges and exploded the blasts. It was the duty of plaintiff and his gang to clean up the debris afterwards. It appeared by evidence that before a blast plaintiff and his gang were removed to a distance, and after the blast and inspection of the premises by torches the electric wires were laid and lights turned on, and then the cleaners-up, such as plaintiff, came in to clean up the broken rock and other debris, break up rocks too large to be removed, lay tracks, etc. On the day in question there had been a blast at about four A. M. After an examination of the premises by one of defendant's superintendents plaintiff and his gang were called in to clean up. The accident occurred about five A. M.

Plaintiff testified in substance that he was directed by the foreman to break up a large rock in which apparently a hole had been drilled; that he objected; that the foreman then extracted some dynamite from a hole in the rock, and on further objection being made

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