{after stating the facts). Defendant made the excavation. Under his bond with the city it was his duty to protect it when open, and to cover it up when his work was completed. He did not do it, but turned it over to Mr. Owens, with an agreement upon his part that he would protect it. Defendant fully understood his legal duty. He might have sought the proper authorities of the city, and relieved himself from liability by agreement *312with it to turn the excavation over to Mr. Owens. He did not, however, even notify the city of his arrangement with Owens. He was primarily liable. The city is under no obligation to ascertain whether defendant or Mr. Owens was liable, or to run the risk of determining what the contract was between defendant and Owens, and of thus falling between two stools. Plaintiff knew that defendant made the excavation; that it had not been filled; that it was left unprotected, in consequence of which the city was subjected to damage. Its right to look exclusively to defendant, who was primarily liable, is undoubted. If defendant has any remedy, he must seek it against Owens.

Judgment affirmed.