Phillips v. Roth

Rector’s, a corporation, conducting a restaurant in the city of New York, made a contract with one Albert to construct and install eight storm windows in a building occupied by it. Albert assigned the contract to the appellants, a copartnership engaged in doing cabinet work, and they manufactured the window frames and sublet to one Munnane the work of installing them, and to David Shuldiner, Inc., the work of putting in the glass. In putting in the frames Munnane used a port-*793able scaffold some fourteen feet long, supported by four uprights about ten feet in height. It was placed upon the sidewalk and moved from one window to another as occasion required. It had been used for three days, and on the night before the accident left securely fastened to the building. On the day of the accident it had not been used at all by Munnane or his employees. Immediately prior to the accident two men who were putting in the glass attempted to move it, and in doing so it fell over, struck the plaintiff, and caused the injury of which he complains. This action was brought against Rector’s and the appellants, the general contractors. At the close of plaintiff’s case the complaint was dismissed as against Rector’s and at the conclusion of the trial submitted to the jury to determine whether the appellants were liable. It found a verdict in favor of the plaintiff for $1,700, and from the judgment entered thereon and an order denying a motion for a new trial the appeal is taken.

The verdict is not sustained by the evidence. Assuming that the scaffold fell by reason of the negligence of the men who were moving it, and they were the employees of either the sub-contractor, Munnane, or Shuldiner, Inc., this did not make the appellants liable. It conclusively appeared that both Munnane and Shuldiner, Inc., were independent contractors. Their employees were not hired by the appellants and were in no way subject to their direction or under their control. When the appellants sublet the work for installing the window frames and putting in the glass they did not specify how that work was to be performed, nor did they reserve to themselves the right to interfere in any way with its prosecution. Both sub-contractors were, so far as appears, thoroughly competent to do what they had agreed to, and there is no evidence whatever indicating negligence on the part of the defendants in subletting the work to them. The appellants, therefore, in accordance with well-settled principles regarding independent contractors, are not Hable for their negHgence or that of their workmen. (Hexamer v. Webb, 101 N. Y. 377; McCafferty v. S. D. & P. M. R. R. Co., 61 id. 178; Von Lengerke v. City of New York, 150 App. Div. 98.)

The court below was of the opinion that the case in principle *794fell within the exception to the rule laid down in the authorities cited, to the effect that a person who makes a contract necessarily involving the doing of some act inherently dangerous is bound to see that the act is performed in a proper way. The facts, however, do not bring the case within the exception. The installation of the frames and glass was not an act inherently dangerous. It could have been performed with safety. It is obvious the scaffold could have been secured or moved without danger to one using the street. The fact that it fell upon the plaintiff was not by reason of any negligence on the part of the appellants, but solely by reason of the negligence of the sub-contractors or some one in their employ.

The case cannot be distinguished in principle from Hexamer v. Webb (supra), where defendant had agreed with an independent contractor to do certain repairs on the outside of a building, and in the performance of the work the contractor used a suspended scaffold from which a plank fell, striking plaintiff, who was passing in the street. The court held that defendant was not liable because the work was not of such a character as to bring the case within the exception of the rule referred to. (See, also, Engel v. Eureka Club, 137 N. Y. 100; Wolf v. American Tract Society, 164 id. 30; Uppington v. City of New York, 165 id. 222.)

The judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellants to abide event.

Ingraham, P. J., Laughlin, Clarke and Soott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.