
    WILLIAM K. CLARE, Plaintiff and Respondent, v. THE NATIONAL CITY BANK, Defendant and Appellant.
    NEGLIGENCE.
    
      Responsibility of principal for the negligence of employees of a person with whom he has contracted for the performance of work.
    
    The employment of a superintendent by the party who contracts for the work, to see that the work was properly done and in accordance with the contract, does not give the party the control of the work, to that extent that he becomes liable for the negligence of the employees of the contractor who are directly under, the control and direction of the latter.
    The right to select and employ and control the action of the workman or servant, whose negligence is complained of, lies at the foundation of the responsibility of a master or principal for the negligent act of such workman or servant by which another person has been injured. The person who possesses and exercises that right, is the one recognized by the law as the master.
    In the case at bar the defendant and another, the owners of certain real estate in New York, contracted with different parties for extensive building improvements, alterations, and general repairs, upon the property owned by them.
    The persons who contracted to do the work, employed the workmen, and controlled and directed them in their employment, and the plaintiff was injured by the carelessness and negligence of said workmen, or some one of them. The owners of the property employed a superintendent to see that the work was properly done according to the contracts and plans. This superintendent was aided and assisted by an architect, but neither the owners, the superintendent, nor the architect selected or employed the workmen or controlled and directed their labors.
    
      Reid, that the defendant was not liable to the plaintiff for an injury caused by the negligence of the workmen of the contractors, or some one of them.
    
      Before Freedman and Speir, JJ.
    
      Decided December 6, 1875.
    Appeal from order denying a new trial.
    The complaint alleged that the defendants were the owners, and in the possession, making alterations and repairs of the premises known as the westerly portion of No. 52 Wall street, in the city of New York. That the defendants so carelessly and negligently omitted and neglected to provide any safeguard or warning while engaged in making the repairs and alterations, that the plaintiff, in the course of his business, while passing over the sidewalk in front of defendant’s building, and unaware of the unsafe condition of the building, and without any fault or negligence on his part, was violently struck on the head by a board which was thrown or fell from the building, throwing him upon the ground, and rendering him insensible, by reason of the negligence and carelessness of the defendants, or of their employees.
    The answer was a general denial, and admitted that the defendants were, and still are the owners, and in part the occupants of the premises, and that they caused alterations to be made of the same at the time mentioned in the complaint.
    The whole of the work was done under contract. Three of the contracts were in writing; the rest were verbal. The work was paid for according to contract. The accounts of the work were presented to the architect, who certified to their correctness, and drew a draft for the money. Each mechanic kept his own account, and each contractor kept his own men’s accounts. The defendant did not select or employ any of the workmen.
    The plaintiff had a verdict for two thousand dollars. Defendant moved for a new trial on the minutes, which was denied, and he brings this appeal.
    
      Arnoux, Ritch & Woodford, attorneys for appellants ; Wm. H. Arnoux, of counsel.
    
      James S. Stearns, attorney for respondent; Luther B. Marsh, of counsel.
   Speir, J.

At the time of the accident, it appears that the premises, 52 Wall street, extending through from Wall to Pine streets, were owned, the one-half westerly part by the defendants, and the easterly one-half by the New York Life Insurance and Trust Company. Mr. Henry Parish, who was a director in the defendants’ bank, and a trustee in the New York Life Insurance and Trust Company, was the chairman of the building committee for both institutions. The defendants alone were the owners of the premises from which the plank fell, causing the plaintiff’s injury. The improvement was jointly carried on by both companies, consisting of one building having a common entrance, and under the general management of Mr. Parish as superintendent. A new building was put up on the Pine street front, and the Wall street front was practically rebuilt. When the accident occurred, the Pine street building was pretty well finished, the front was up on Wall street, and the second story had one or two coats of plaster on. The defendants at this time occupied the rear room on the first floor on Pine street, and did not occupy any part of the second floor.

This court has decided, adopting the principle established in this and the supreme court, that the employment of a superintendent by the party who contracts for the work being done, to see that it is properly done, and in accordance with the contract, does not give him control of the work or affect his liability. The chairman of the building committee in this case can hardly be said to have exercised the office of superintendent. He did not make any of the payments. The routine of business adopted by him, was daily frequenting the architect’s office, examining the drawings with a view of consulting with the architect, and to see if they were carried out. If he saw any defects, to speak to the architect about them, and not to the men engaged in the work, nor to the contractor. It clearly appears that the architect was the chosen agent between the defendants and the contractors, who should be the final arbiter relating to all questions in dispute between them. The payments were'made to him upon his certificate ; each mechanic kept his own account, and each contractor kept the account of his own men. ¡Neither the superintendent nor the defendants, nor even the architect, selected the workmen ; and this right of selection lies at the foundation of the responsibility of a master or principal for the acts of his servant or agent.

The superintendent does not appear to have had any control over the contractors or their workmen as to the manner of performing it, and what he did do had no tendency to create the relation of master and servant, or of principal and agent, between the defendants and the contractors, or the workmen employed by them.

I am not able to find any evidence in the cage authorizing the jury to find a verdict against the defendants. The only testimony in the case which throws any light upon the cause of the injury, and by whom inflicted, is that of Judge Curtis, and that in no way points to the defendants, but rather to the servants and agents doing the work. According to his testimony, the plank appeared to come out of the top of the second story window. It was what is ordinarily called scaffolding boards. He saw a scaffolding inside of the window undergoing some change, and some person apparently at work at the scaffolding very near the upper ceiling of the room. This, so far as it goes, is affirmative evidence, and points to the workman in charge.

Besides, the evidence is uncontradicted that the defendants at the time occupied the rear room on the first floor on Pine street, and did not occupy any part of the second floor.

The case can not be distinguished in principle from those already decided by this court, and it does not seem necessary or useful to repeat the reasoning in those cases.

Judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event.

Freedman, J.

On the second appeal (35 N. Y. Superior Ct. R. 261), the general term of this court held, that under their answer the defendants had a right to show that the work was done for them by contract, under independent contractors, over whose workmen the defendants had no control, the workmen being responsible to the contractors only. Under the permission thus given, the defendants have now supplied such proof, and the same, as given, constitutes a defense on their part to plaintiff’s cause of action.

I, therefore, concur in reversing the judgment, and ordering a new trial.  