Scheller v. Silbermintz

O’Gorman, J.

The defendant was the owner of a building in process of construction and caused a temporary roof or shed to be erected over the sidewalk in front thereof, pursuant to the provisions of a permit duly obtained from the municipal authorities. The sidewalk was a temporary structure and consisted of a number of boards covering the excavation beneath. Some months after its erection, the roof suddenly collapsed and parts thereof fell upon and injured the plaintiff, who, at the time, was walking upon the sidewalk. The happening of the accident raised a presumption of negligence against the defendants. Stewart v. Ferguson, *176 164 N. Y. 553. The defendants sought to rebut the presumption by evidence that the structure became insecure in consequence of an unauthorized excavation, made by an independent contractor, close to one of the timbers -which supported the shed. This evidence was sharply disputed and presented a question of fact for the jury. It was the defendants’ duty to employ reasonable care to erect and maintain a reasonably safe structure over this sidewalk, and liability for a defective structure cannot be evaded by the mere employment of an independent contractor to construct it. Deming v. Terminal Ry., 169 N. Y. l; Coolidge v. City, 99 App. Div. 175; Murphy v. Rerlstein, 73 id. 256; Mullins v. Siegel-Cooper, 88 N. Y. Supp. 737. The accident did not occur while the contractor was constructing the shed, and the principle of delegating work to an. independent contractor has, therefore, no application. The shed was under the control, ownership and supervision of the defendants; and, as said in Weber v. Buffalo Ry. Co., 20 App. Div. 292: “ When defendant assumed the duties imposed by the permit it made itself liable for all injuries resulting from its nonperformance or insufficient performance. The company could not relieve itself from the obligation imposed by its covenant with the State by contracting with another to fulfill it. It was an imperative duty required by the permit, and the company was not absolved from its duty and responsibility because it employed a contractor to do the work.” The complaint was properly dismissed as to the owner’s husband. As agent or manager for his wife, he owes no duty to the plaintiff; and, unless a servant is gu-ilty of actual misfeasance or tort, he cannot be held liable with his master. If he neglects a duty which his master owes to third persons, the remedy is against the master alone. 20 Am. & Eng. Encyc. of Law (2d ed.), 52. But the direction of a verdict in favor of the defendants was clearly error, requiring a new trial.

Scott and LTewburger, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event,