
    Julia Diehl, as Administratrix, etc., of George Diehl, Deceased, Respondent, v. Andrew Robinson, Appellant.
    
      Negligence—use by employees of a sub-contractor of an elevator, installed by the principal, contractor and operated by his servant—when the principal contractor is liable.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant had a contract to erect a building and that he had sublet the carpenter work and the iron work respectively to two other contractors; that on the day of the accident some of the carpenters in the employ of the sub-contractor for the carpenter work applied to the defendant’s superintendent, who had the general supervision of the entire work, for permission to use, in connection with their work, an elevator which- had been installed by the defendant; that the defendant’s superintendent granted the request and designated one Flynn, who was in the general employ of the defendant, to operate the car; that while the carpenters were using the car at the fifth and sixth floors of the building, the intestate, who was employed by the sub-contractor for the iron work, was engaged at the fourth floor in the performance of a duty which required him to lie down on the floor and extend a portion of his body into the elevator shaft; that after the carpenters had completed their work, Flynn lowered the car, and that while it was descending it struck the intestate and killed him.
    
      There was evidence tending to show that, the defendant installed the elevator for the purpose of facilitating the work of the sub-contractors as well as his own work, and that it was operated by persons employed by him and whose actions he controlled, and that on the occasion of the accident the carpenters had the exclusive control'of the car and directed its movements.
    
      Held, that it was error for the court to refuse to charge: “ If the jury find that at the time of the accident and for some time prior thereto the elevator which inj ured Diehl was used exclusively by the carpenters in the performance of their work, and that they were directing the movements of the car, then the defendant Robinson cannot be held responsible for the acts of Flynn, and the verdict should be for the defendant; ”
    That, on the other hand, if the jury found that Flynn was performing a duty for which he had been employed by the defendant, the fact that he moved the ■car according to the direction of the carpenters did not relieve the defendant from liability by reason of Flynn’s negligent act, as in that case the carpenters ■controlled the actions of Flynn simply by permission of the defendant, and to that extent represented the defendant.
    Appeal by the defendant, Andrew Robinson, from a judgment of the Supreme Court in favor of the plaintiff, 'entered in the office of the clerk of the county of New York on the 22d day of June, 1901, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 16th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert G. Smyth, for the appellant.
    
      Frederick W. Block, for the respondent.
   McLaughlin, J.:

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. The plaintiff recovered a judgment, from which defendant has appealed.

The defendant contracted to erect a building in the city of New York. He sublet the carpenter work to Y. J. Hedden & Sons, and the iron work to J. B. & J. M. Cornell.' On the morning of the accident, some of the carpenters in the employ of Y. J'. Hedden & ¡Sons, desiring to complete certain work which they had in charge on the fourth, fifth • and sixth floors' of the building, applied to one Faddis, who was the ■ defendant’s superintendent and had general ■■supervision of the-entire work, for permission to use the elevator -car in connection with their work as a platform. Their request was granted, and Flynn, an employee of the defendant engaged in doing general work about the building, was designated by Faddis to operate the car. When the car reached the fourth floor, the intestate, an. employee of J. B. & J. M. Cornell, who was there engaged in pointing up ” the iron work of the elevator shaft, used the car ■ in connection with the carpenters. After the carpenters had completed their work at the fourth floor, the intestate got off the car and it was taken by the carpenters to the floors above where it was used for a similar purpose. It became necessary for the intestate, after the car had been taken to the floors above, in performing his work, to lie down upon the floor and reach downward, extending a portion of his.body into the elevator shaft. While in this position, the carpenters having completed their work, or to such an extent that there was no further necessity for the car, Flynn lowered it and while it was descending it struck the intestate and killed him.

It is conceded that Flynn at the time was in the general employ of the appellant, but it is urged that, notwithstanding that fact, he was in law the servant of Y. J. Hedden & Sons, and, therefore, the defendant is not responsible for his negligence? The defendant, it will be remembered, had entered into a contract for the erection of the entire building, and while it is true he had sublet a portion of the work, there is evidence to the effect that for the purpose of facilitating his own work and the work of other contractors he had installed an elevator which was operated by his own servants; that the elevator was run for the accommodation of all the people in the building; that this was its design and purpose,; that it was furnished and operated by persons employed by him and whose actions he controlled. Thus, Flynn testified that he had taken up on the elevator lots of workingmen and men that were doing work all around the elevators. I would take men up who were working in and about the shaft. If a man wanted to work anywhere he would get into the elevator and tell me where to take him. * * * I did that right along. I took painters up on the elevator. I have had painters working on top of the elevator car, and I would take the elevator up and down as they wanted to paint.” Faddis also testified that the car was frequently used as a platform, if it facilitated the.work, and that no particular contractor had the exclusive use or control of it. There is also some evidence to the effect that on the morning of the accident special permission had been obtained from Faddis by the carpenters to use the car as a platform to do certain work which they had in charge, and that while in the performance of that work the carpenters had the exclusive control of the car and directed its movements. . If it be true that the car, at the time of the accident, was under the exclusive control of the carpenters and it was moved only in accordance with their directions, then the defendant is not responsible for the death of the intestate.

This being the situation at the close of the case, the defendant requested the court to charge : “ If the jury find that at the time of the accident and for some time prior thereto the elevator which injured Diehl was used exclusively by the carpenters in the per-' formance of their work, and that they were directing the movements of the car, then the defendant Robinson cannot be held responsible for the acts of Flynn, and the verdict should be for the defendant.” This request was declined and an exception taken. We think the court erred in not charging the request as made. Had the facts stated in the request been found by the jury,.then the defendant would not have been «liable under the rule laid down in Wyllie v. Palmer (137 N. Y. 248); McInerney v. D. & H. Canal Co. (151 id. 411), and Higgins v. Western Union Telegraph Co. (156 id. 75). On the other hand, if the jury reached the conclusion that Flynn was performing a duty for-which he was employed by the defendant, then the fact that he moved the car according to the directions of the carpenters did not relieve the defendant from liability by reason of Flynn’s negligent act. In that case the carpenters - controlled the act of Flynn simply by permission of the defendant, and to that extent they represented the defendant. The question of Flynn’s negligence and the intestate’s freedom from negligence were for the jury.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Tan Brunt, P. J., Patterson, O’Brien and Láughlin, JJ.,concurred.-

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