
    (129 App. Div. 504.)
    HOLT v. MILLIKEN BROS.
    (Supreme Court, Appellate Division, Second Department.
    December 30, 1908.)
    Master and Servant (§ 278) — Injuries to Servant—Actions—Evidence-Negligence oe Master.
    Evidence in an action by an administrator of a servant against a master for negligence resulting in the death of the servant helé to show that the master was negligent by directing, through a foreman or superintendent, the placing of heavy stones upon the roof of a building which was not strong enough to support them, resulting in a breaking of the roof, causing the death of plaintiffs intestate.
    [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 278.*]
    Appeal from Trial Term, Richmond County.'
    Action by William T. Holt, public administrator, against Milliken Bros. Judgment for plaintiff, and defendant appeals. Affirmed.
    Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and MILLER, JJ.
    William L. Kiefer, for appellant.
    Jonathan Deyo, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   JENKS, J.

The action is by the administrator of a servant against a master for negligence whereby the servant was killed. • I think that the plaintiff made out a cause of action under the employer’s liability act (Laws 1902, p. 1748, c. 600), and that the judgment must be affirmed.

The plaintiff was at work with other fellow servants carrying coping stones to be placed upon a wall under construction «by the master. The wall arose above a roof which was then under construction by an independent contractor, who at the time of the accident was setting up temporary frames to receive concrete, and who had covered the roof with a temporary flooring. The general superintendent of the defendant obtained permission from this independent contractor to use his hoist to carry the stones to the roof and to pass over the roof in order to carry the coping stones to this wall. When the servant was at work thus carrying these stones a part of the roof fell and brought him down with it. The roof was practically ready for shoring, but was temporarily, not permanently, shored. The collapse of the roof, or rather a part thereof, was due to the fact that some of these heavy coping stones had been put upon the roof, which was insufficient to sustain their weight and that of the men engaged in carrying them. There is evidence that these stones were thus placed temporarily upon the roof under the direction, of Gilligan, an employé of the defendant. This work had been doing for two or three days. The representative of the said independent contractor, two days before the accident, found stones resting upon this roof, called Gilligan’s attention to it, told him that it was not safe to place stones on any part of the roof, as it was not shored, and caused Gilligan to remove them. Gilligan promised to desist.

Upon this evidence I think that the jury could find that the master was negligent if Gilligan thereafter directed the plaintiff to put down a stone or stones upon the roof,, provided such order was given by Gilligan as a superintendent in the exercise of such duty of superintendence. The status of Gilligan was- submitted to the jury, and the question is whether the evidence sufficed for a finding that Gilligan, when he ordered the servant to place the stone upon the roof, was a superintendent engaged in an act of superintendence. There is evidence that Gilligan had charge of these men and gave orders to them. He directed them where to carry the stones, and where to place them, and generally as to what was to be done about this particular work. He did not work with his hands, and it appears that he was the only person who continuously gave these directions and oversaw this particular work. The defendant offered evidence that its superintendent was McLean; but McLean testified that the “job” was “a big large job” and “covered a large area,” and that he walked around it three times a day, and then he was occupied in the office. He was occupied with engineering office work, and had general charge. McLean testifies that he had several “foremen,” and that Marsh was the foreman of the work in question; but he also testifies that Gilligan was in charge of these men at that time, and that Marsh was the general foreman of all of the laborers. In the language of Cullen, C. J., writing for the court in Guilmartin v. Solvay Process Co., 189 N. Y., at page 495, 82 N. E., at page 726:

“The question in any case brought under the statute is not whether the negligent act is a detail of the work, but whether it is a detail of the superintendent’s part of the work, or of that of the subordinate employés and servants.”

I think that the jury could find properly that Gilligan was a superintendent within the purview of the statute, and that the act of Gilligan in directing the men in his charge where to place these stones was a detail of superintendence. See Mikos v. New York Central & Hudson River R. R. Co., 118 App. Div. 536, 102 N. Y. Supp. 995, affirmed 191 N. Y. 506, 84 N. E. 1116.

The judgment and order should be affirmed, with costs. All concur.  