
    Israel Boss, an Infant, by Abraham Boss, his Guardian ad Litem, Appellant, v. Sender Jarmulowsky, Respondent.
    
      Negligence or nuisance — injury from the falling of material placed in a tenement house hall by an independent contractor engaged in work on the front of the building — liability of the owner who neither consented nor knew of such use of the hall.
    
    The owner of a tenement house entered into a contract for the'malting of certain alterations upon the building which included the installation of show windows for store purposes in the front basement and necessitated the .removal of brickwork and the taking down of part of a fire escape on the front of the building. The owner reserved no control over the contractor, sub-contractor or the workmen of either and in no way interfered with the work or gave any directions in regard thereto. The -work to be done was, so far as appeared, not, in itself, dangerous to the tenants, and some of them remained in the building while it was being performed.
    During the course of the work a subcontractor, to whom the work of taking down the fire escape had been sub-let, placed a portion of the removed material in the street. A policeman having objected to this disposition of the material, he deposited a portion of it in the hallway of the premises. After it had remained in the hallway for a few hours, it fell upon and injured the child of one of the tenants of the house.
    It did not appear that the owner of the premises had actual or constructive knowledge or notice that the material had been placed in the hall.
    
      Held, that the owner was not liable for the injuries sustained by the child, either on the theory that he was guilty of negligence or on the theory that he maintained a nuisance;
    That the negligence or nuisance, if any, was that of the employees of an independent contractor, for which the owner was not liable.
    Appeal by the plaintiff, Israel Boss, an infant, by Abraham Boss, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of December, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Abraham Levy, for the appellant.
    
      Harold, Nathan, for the respondent.
   Patterson, J.:

This action was brought to recover damages for injuries sustained by the infant plaintiff in a hallway of premises Ho. 159 Orchard street in the city of. Hew York, which premises belonged to the defendant. It is alleged in the complaint that the defendant wrongfully, carelessly and negligently allowed a heavy iron railing to remain in a dangerous position against a wall in the hallway of the premises, and that while the infant plaintiff was passing through the hallway this railing fell upon and seriously injured him. It is further alleged that the iron railing remained in the hallway for about four days and that it was an unlawful and dangerous obstruction and was permitted to remain in the premises “insecure and unfastened * * * for several days,” with the full knowledge of the defendant, his agents and servants; that the plaintiff was lawfully on the premises and in the hallway, his parents being tenants of the defendant. The defendant in his answer denies that he was in control or possession of the premises at the times mentioned in the complaint, and he further sets up that at such times such premises described were under the control and in the possession of a third person, with whom he, the defendant, had made a contract for the alteration of the premises, and that whatever injuries were sustained by the plaintiff at the time and place mentioned in the complaint were due to the negligence of the person injured, or to the negligence of his parents, guardians or custodians; and that if such injuries were due in whole or in part to the negligence of any one else, it was the negligence of such person with whom the defendant had made such contract for the alteration of the premises, or his servants or employees, or of some one other than the defendant, and were not the result of any negligence on the part of the defendant. At the trial, evidence upon the issues raised by the pleadings was introduced by both parties; and at the conclusion of the case the trial judge directed a verdict for the defendant; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, the plaintiff appeals.

The following facts are established by the evidence: The defendant was the owner of the premises in question; the building was a tenement house, and the infant plaintiff, four years of age, resided with his parents, who were tenants of one of the apartments in the house. The defendant contracted to have certain alterations made in the front of the building, and entered into an agreement with a builder to make the alterations in accordance with specifications agreed upon. These alterations seem, from the terms of the specifications, to have included the putting in of show windows for store purposes in the front basement, and that required the removal of brick work and the taking down of part of a fire escape on the front of the building. One Polstein was the contractor for making the alterations, and he sublet the iron work to the firm of Ravitch Brothers, who were to remove the fire escape, or so much thereof as was necessary. Ravitch Brothers undertook the work, which was done by their workmen or employees, under the superintendence of one Levy. While the fire escape was being removed, parts of it were placed in the street,, but that disposition of the material was . forbidden by a policeman, and thereupon Levy directed the men working under him to carry a part of the material and deposit-it in a hallway of the tenement house. That was done on the afternoon of the same day on which the infant plaintiff was injured.

The defendant had no control over the contractor, sub-contractor, or the workmen of either, He in no way interfered with the work, gave no directions in regard thereto, but left it completely with the contractor. It does not appear that the work to be done was in itself dangerous to occupants of rooms in the house. Some of the tenants, including the father of the infant plaintiff, remained in the premises while the alterations were going on. The injuries sustained by the plaintiff were the consequence of the iron obstruction falling . upon him late in the afternoon of the same day on which it was placed in the hallway, and at that time the plaintiff was rightfully in such hallway.

That the negligence which resulted in injury to the infant plain-? tiff was that of an independent contractor is' established. This obstruction was not placed in the hallway by the defendant or by his servants. There was no interference by him or them with the work the contractor ivas employed to do; what was contracted for was lawful; what was to be done Under the contract was not of such a character as devolved upon the owner the performance of an affirmative duty to his tenants occupying rooms, and which he could not delegate to a contractor. That contractor had no right or authority or power to interfere with the hallway or to obstruct it. The use of - the hallway is not shown to have been necessary to the work, which work was not of a kind that involved danger to those who should use the hallways. ■ The contract did not include any alteration of the hallways, or authorize their use as a place of deposit for material by the contractor. Those who placed the obstruction in the hallway were not in the employ of the defendant, but of the contractor or sub-contractor ; and the defendant cannot be made liable for the consequences of the wanton or careless act of a person not in his employ. (Martin v. Pettit, 117 N. Y. 118.) Nor can the defendant be held liable upon the theory that he neglected a duty by allowing this obstruction to remain in the hallway. The accident occurred only a few hours after the iron material was deposited there. There is nothing to indicate that the defendant had knowledge or notice, actual or constructive, of its being there. It is the duty of an owner to use reasonable care in keeping the stairways and hallways used in common by his tenants in suitable condition for safe passage; but there is no violation of that duty until he knows or ought to have known that they are in a dangerous condition. In the absence of actual knowledge, the burden was upon the plaintiff to show that the obstruction had existed for such a length of time as to charge the defendant with notice of its presence. (Idel v. Mitchell, 158 N. Y. 139.)

It is claimed, however, that the case should not be considered as one of negligence only, but that the allegations of the complaint are broad enough to charge the defendant with maintaining a nuisance in a hallway, a common appurtenance of' a tenement house, and that the proof establishes that a nuisance was maintained by the landlord. It is evident that this obstruction was not created in the hallway by the owner, or by his servants or agents, but was the wrongful act of a third party. If it were a nuisance, it was created by the servants or employees of the independent contractor. It was not the result of the ordinary method of doing work intrusted to an independent contractor, but was caused by the negligence of the contractor or his servants and was in a matter purely collateral to the contract, viz., depositing materials, and the case comes within the distinction referred to by Gray, Oh. J., in Gorham v. Gross (125 Mass. 232, 240).

On reading the whole evidence, we do not find it sufficient to establish that the owner maintained or suffered a nuisance to continue, and so failed in his duty to tenants, and in the view we have taken of this case it is unnecessary to consider whether the defendant had a janitor in the premises when the accident occurred.

'The judgment and order appealed from should be affirmed, with costs.

Yah Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment, and order affirmed, with costs.  