made December 8, 1893, which affirmed a judgment in favor of defendant entered upon the dismissal of plaintiff's complaint upon the merits on trial at Circuit.

This action is brought to recover damages for the death of plaintiff's son from an explosion of gas in the building in which the plaintiff had an apartment, such explosion having occurred, as is alleged, by reason of the negligence of the defendants in pernitting the gas to flow into the building without first properly testing the pipes. The answer denied any negligence on the part of the company, and set up as a further defense the contributory negligence of the deceased. The plaintiff was non-suited at the trial and the General Term affirmed the non-suit, and the plaintiff appeals here. The defendant is a manufacturer of gas in the city of Syracuse and furnishes the same to all inhabitants of the city desirous of using it. The gas is supplied in the usual way by means of mains laid underground in the streets and connecting by means of service pipes with the different structures in which the gas is consumed. The company lays and owns the street mains and the service pipe therefrom to the inside of the cellar or basement of the buildings to be supplied. The service pipe is left by the company unconnected with the piping in a building, and the gas is prevented from flowing into it by means of a stopcock placed in the service pipe a short distance inside the curb at the side of the street. It has been the custom of this company to permit this service pipe to be connected with the piping in a building by the owner thereof as soon as he has made application to the company to become a consumer of the gas and after it has supplied him with a meter, and such connection has been customarily made by a gasfitter employed for that purpose by the owner, and without giving any notice thereof to the company.

In the spring of 1889, one George Young had completed the erection of a three-story brick building on the west side of North Salina street in the city of Syracuse. The building was divided into stores on the ground floor and into separate and independent apartments or flats above. There was one

double and one single store, and there were three flats upon each of the floors above the stores. The double store had been rented by the owner to a firm named Vinney & Krause, while the single store had been rented to the plaintiff for a confectionery shop, and the plaintiff had also rented one of the flats in the second story for his family. Two of the flats on the third floor and immediately above the flat occupied by the plaintiff were occupied by the families of two women, Mrs. Ripple and Mrs. Bordner. The plaintiff moved into the building April 19, 1889, and the other tenants were moving in about the same time. The accident occurred that same evening. The whole building was equipped with gas pipes, but so arranged that each store and flat could be supplied with gas through a separate and independent meter.

Upon the application of the owner, made about the 29th of March, 1889, the company put in the service pipe extending into the cellar of the building through the cellar wall. The gas was excluded by means of the stopcock near the curb at the sidewalk. On the 10th of April one Steingriebe, who occupied one of the three flats on the third story, applied for a meter for his flat by signing an order book at the office of the company. Vinney & Krause, the tenants of the double store, had also and about the same time applied for a meter. The meters had in both cases been refused by the company until proper plans of the piping were furnished. These plans were subsequently furnished and the meters were then delivered. The gas was subsequently turned on by one of the gasfitters or his employee, and without notice to or knowledge on the part of the gas company. It had been the practice of the company for many years in Syracuse to accept and rely upon these plans when furnished the same as if they were a certificate by the gasfitter or plumber putting in the piping that such piping was then complete, tested and ready to receive gas, the company itself not making any examination. It did. not itself connect the meters with the piping in a house nor itself and directly through its own agents and employees see to the turning on of the gas from the street mains through the

service pipe into the building. Those who applied for the meters engaged such persons as they chose to do this work. After the meters had been supplied to this building they were connected with the service pipe by the employees of the owner or tenants who engaged them for the purpose. There was customarily no objection made by defendant to the turning on of the gas from the street main after the person wishing to use the gas had applied for the same to defendant and been furnished by it with a meter. The defendant, by furnishing the meter, thereby consented to the turning on of the gas by any one. In this case the defendant relied on the certificate spoken of as to the condition of the pipes. In truth, the piping in the upper hallways had not been properly attended to before the gas was let into the building by one of the employees of the plumber or gasfitter who was engaged to attach the meter to the service pipe by one of the tenants. The ends of the pipes in the third story hallway had not been plugged, and hence the moment the gas was turned on in the street it went, in addition to the store where it was wanted, up through the other pipes into the hallway of the third story and escaped therefrom into that hall. The only opening at which the gas could escape was in the hallway. The hallway was also the only means of access which the tenants had to their respective flats from the street entrance. The two women tenants had not applied to the company to be furnished with gas and did not intend to use the same in their apartments. They were using oil for illuminating purposes. After the gas had been turned on from the street on the evening in question by some one not in any way connected with the company, and some time between half after eight and nine o'clock, the smell of gas became noticeable in the hallway mentioned. The plaintiff's son, a young man about 18 years of age, was in the apartment hired by his father, reading, when he heard the voices of the women, and going out into the second story hallway, asked them what was the matter. There was then no smell of gas in the plaintiff's apartment. The boy was told of the escaping gas somewhere and so he

went up stairs to the third story and said he would try and discover the location of the leak and stop it until morning and proposed to take a lamp. Mrs. Bordner, one of the tenants, said she thought a lamp would be dangerous, to which the boy assented and then said he would take a candle, as he had seen plumbers use a candle to find a leak. He, therefore, procured one and had it lighted and went to a pipe in the side wall in the third story and applied the flame to the cap of the pipe and around it and said "that is all right." Walking to the end of the hall he had partly got upon a barrel lying there, when an explosion occurred which injured the boy so that he soon thereafter died.

Gasfitters do in fact use torches and candles upon some occasions in testing or searching for leaks in gas pipes. Believing that the gas company had been guilty of negligence in causing the death of plaintiff's intestate under the circumstances herein stated, the plaintiff brought this action to recover damages on account thereof.

Louis Marshall for appellant. The court should have submitted to the jury the question as to whether the defendant was negligent in suffering gas to be turned into a new building which, as it was aware, was divided into different dwellings, occupied by different tenants, part of whom only desired to use such gas, without satisfying itself by an inspection of the premises, or otherwise, that its gas could be safely admitted into the building, or without adopting and insisting upon obedience to rules with respect thereto which would have properly regulated the introduction of gas under such circumstances. (3 R. S. [8th ed.] 2080, 2081, §§ 6, 7, 8; Ferguson v. M. G. Co., 37 How. Pr. 189; Regina v. White, 20 Eng. L. & Eq. 585; Queen v. First, L. R. [1 Cr. Cas.] 172; Penal Code, § 651; Van Leuven v. Lyke, 1 N. Y. 515; Hay v. C. Co., 2 N.Y. 159; Marsh v. Hand, 120 N. Y. 319; Bohan v. P. J. G. Co., 122 N. Y. 18; Ellis v. L. I. Co., L. R. [10 C. P.] 10; Rylands v. Fletcher, L. R. [3 Eng. & Ir. App.] 330; Dixon v. Belle, 5 M. & S. 198; Thomas v. Winchester, 6 N. Y. 397; Crown

hurst v. A. B. Board, L. R. [4 Ex. Div.] 5; Forth v. B. I. Co., L. R. [3 C. P. Div.] 254; Henery v. Dennis, 93 Ind. 452; Smith on Neg. 109; Hipkins v. B. G. Co., 6 H. & N. 250; Blenkiron v. G. C. G. Co., 2 F. & F. 440; Mose v. H. G. Co., 4 F. & F. 324; Burrows v. M. G. Co., L. R. [5 Ex.] 67; L. R. [7 Ex.] 46; 41 L. J. Ex. 46; Lannan v. A. G. Co., 46 Barb. 264; 44 N. Y. 459; Parry v. Smith, L. R. [4 C. P. D.] 325; 48 L. J. [C. P.] 731; Butcher v. P. G. Co., 12 R. I. 149; Pollock on Torts, 411, 413; Chisholm v. A. G. Co., 57 Ga. 28; Kinnaird v. S. O. Co., 41 Alb. L. J. 227; Kennedy v. Ryall, 67 N. Y. 379; Abell v. D. & H. C. Co., 103 N. Y. 681; 128 N. Y. 662; Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 332; Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; Warn v. N. Y. C. & H. R. R. R. Co., 80 Hun, 71; Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557; Whitaker v. D. & H. C. Co., 126 N. Y. 544.) Whether the deceased was, under all the circumstances, guilty of contributory negligence was a question for the jury. (Kibele v. Philadelphia, 105 Penn. St. 41; Nichols v. B. & D. Co., 53 Hun, 137; 117 N. Y. 646; Lee v. C. G. L. Co., 98 N. Y. 117; Bartlett v. B. G. L. Co., 122 Mass. 209.)

The respondent

Edwin Nottingham for respondent. discharged its full duty when it confined its gas to its own receptacles, and prevented its escape therefrom to the injury of others, at the same time allowing consumers to take the gas from its receptacles into their own as they had occasion to use it. (Laws of 1859, chap. 311, § 4, 5, 6, 8, 9; Meirs v. M. G. L. Co., 14 Wkly. Dig. 552.) The implied permission of the gas company to gasfitters to turn on gas at the request of the consumer does not constitute negligence. (Flint v. G. G. L. Co., 3 Allen, 343; 9 Allen, 552; 2 S. & R. on Neg. [4th ed.] § 697.) It has never been thought necessary by the legislature to regulate the use of gas by statute, as the use of poisons, gunpowder and other explosives, and even railroads, is regulated. (Penal Code, §§ 389,