
    Joseph T. Gilbert and Austin S. Tuttle v. Theodore Beach.
    The owner of a building which is in a course of construction under a contract, is not answerable for injuries to a third'person, which appear to have been ocea, sioned solely by the negligence or misconduct of the contractor or his servants.
    But an action for damages is maintainable against the owner, when an act of the contractor resulting in an injury to third persons, appears to have been done in execution of the contract, and in accordance with its terms.
    So when an act of the contractor creates a nuisance, the owner, if he suffers it to remain, is liable to every person whose rights or interest it may injuriously affect.
    
      
      Held, that as the case before the court did not fall within either of these exceptions, the defendant xras entitled to a judgment, dismissing the complaint, with. costs.
    (Before Oaklet, Ch. J., Dder and Campbell, J. J.)
    March 9; March 31, 1855.
    - The action was brought to recover damages for the injuries done to certain premises belonging to the plaintiffs, by flooding the same with water, by means of a gutter and water-spout attached to a building owned by the defendant.
    The complaint charged, that on or. about the tenth day of August, in the year one thousand eight hundred and fifty-two, and for some years previous, and thence to the present time, the' plaintiffs were the tenants and occupants of a certain lot of land, store and premises known and distinguished as No. 20 in Court-land street, in the city of New York, and on the- north side of, said Courtland street, running back therefrom, northwardly, towards Dey street, in said city; that the said’Theodore Beach, during the period'aforesaid was the owner and occupant of a certain lot or parcel of land and premises on the south side of said: Dey street, and butting, bounding and adjoining the said lot and premises of the plaintiffs.
    And that.the defendant, so being the owner and occupant of the lot and parcel of land last aforesaid, on or about the day and year first aforesaid, had then constructed thereon a large building, and by means of a gutter and water-spout attached to the building by him so erected, turned and caused to be turned and flowed in upon the lot, store and premises of the plaintiffs, a large quantity of water from the roof of the defendant’s said building, thereby flooding the said lot and premises of the plaintiffs, and the lower "story or sub-basement of their said store, and greatly injuring and damaging the same, and also a large quantity of goods of the plaintiffs then being in said sub-basement, 'and compelling the plaintiffs to be at great labor and expense in removing the water from their said store and premises, and demanded judgment for $1,000, as damages.
    The defendant in his answer admitted that the plaintiffs were tenants and occupants of the premises,'No. 20 Courtland street,described in the complaint at the time specified in the" same, and that he was owner of certain premises in Dey street, described in the complaint, at the time last mentioned; but denied that he was occupant of the last mentioned premises, on or about tbe 10th day of August, A. D., 1852, and averred that the same were, at that time, in the occupancy and under the control of. certain contractors, who had heretofore contracted to erect and finish the building of defendant, mentioned in the said complaint; that the said contractors were exercising an independent employment in the construction of the said building, and that the defendant had no right to control them in the performance of the same. That if any water-spout and gutter were attached to the said building, which caused any damage to the plaintiffs, the same were, and each of them was attached by persons in the employ of the said contractors, or one or more of them, and was in no respect the act of this defendant, or his agent, or servants. That no gutter and spout, such as is described in the complaint, was designed by the plan in accordance with which the said contractors agreed to erect the said building.
    The answer also denied each and every allegation in the complaint not expressly admitted.
    The cause was tried before Duer, J., and a jury, in May, 1854.
    On the trial a number of witnesses were examined on the part of the plaintiffs, to prove that their store and goods were damaged by water flowing from a gutter and water-spout, attached to a building in Dey street, which the defendant was then erecting.
    On the part of the defendant, it was proved, that all the work on his building, carpenters’, masons’, plumbers’, &c., was done under special contracts, none of which were completed, when the store and goods of the plaintiffs were injured in the manner complained of, and that if the injuries for which damages were claimed, were occasioned by the negligence of any persons, those persons were the contractors, their agents, or servants. And upon this proof the counsel for the defendant insisted that the complaint ought to be dismissed, or that the court should charge the jury to render their verdict for the defendant.
    The Judge said that for the purposes of the trial he should instruct the jury that the agents and servants of the contractors were to be deemed the agents and servants of the defendant, who was to be held responsible for their acts, if any, of commission or omission which had occasioned the damage of which the plaintiffs complained.
    
      The Judge charged the jury-accordingly, and the counsel for the defendant excepted to that portion of his charge.
    The jury, upon the questions of fact submitted to them, found a verdict for the plaintiffs, and assessed their damages at $225.
    • The verdict was taken subject to the opinion of the court at General Term upon the exception to the charge, with liberty to the court to dismiss the complaint, or direct a verdict and judgment thereon to be entered for the defendant.
    
      F. W. Chester, for the plaintiffs,
    now moved for judgment upon the verdict, and argued substantially as follows:
    The principal ground of defence taken on the trial, and the sole ground that can now be urged, is that the defendant had contracted with certain persons to construct- the building which had caused the damage, and that the damage was owing to the acts or negligence of the sub-contractors or workmen employed by these contractors, and that there being no relation of master and servant, and no privity whatever between those sub-contractors and workmen and the defendant, he is not responsible, upon the principle established in BlaJce v. Ferris, (1 Selden, 48,) for their' acts or omissions; but the argument for the defendant overlooks the fact that the defendant is and was the owner of the building, by the state and condition of which the damage was occasioned,- and we insist, with confidence, that the decision in BlaJce v. Ferris "does not touch the case of damage caused by the condition in which an owner puts Ms house or lands, or suffers them to remain. The owner in such cases has always been held to be answerable, and cannot shift the responsibility upon others. He is answerable because the property is his,- and not because he is the immediate superior of the persons employed on it. He is answerable because, not only the property, but the possession is his, and not that of the contractor or contractors, since whatever may be the terms of the contract he may have made, it is in his power, at all times, to dismiss and turn away all who may be employed on his premises, and this power he is bound so to exereise as to prevent any injury resulting to tMrd persons from their acts or negligence.
    
      L. B. Shephard -for the defendant, contra.
    It. is manifest from the evidence and is not denied, that the damage for which the plaintiffs seek a compensation is imputable solely to tbe negligence of tbe workmen and servants of tbe contractors, and in no degree to tbe defendant, wbo _ does not appear to bave bad any knowledge whatever of tbat condition of bis building by wbicb it is asserted tbat tbe damage was occasioned. Acs tbe contractors, however, were exercising an independent employment, in wbicb neither they nor their workmen ,or servants were subject at all to tbe direction and control of tbe defendant, be cannot be held responsible for-their acts and omissions, unless tbe decision of the Court of Appeals in BlaJce v. Ferris"'may be contemned and set aside. We rely upon tbat decision as having settled tbe law in favor of tbe defendant, and therefore ask tbat tbe complaint may be dismissed with costs. In addition to' BlaJce v. Ferris, tbe .counsel cited Stevens v. Armstrong, 2 Selden, 436; City of Buffalo v. Holloway, 3 Selden, 496; Bachy v. Bowland, 16; Eng. L. and Eq. R. 442; Filis v. Sheffield Gas Co. 22; L. and Eq. R. 198, and several other eases.
   By the Court.

Oakley, Ch. J.

It was admitted by tbe learned counsel for tbe plaintiffs, tbat if we are to be governed by tbe doctrine of tbe Court of Appeals in Blake v. Ferris, tbe defendant will be entitled to our judgment, and we are, therefore, to inquire whether there is any sound distinction tbat can justify us in exempting this ease from tbe controlling authority of tbat decision. We are satisfied, upon full consideration, tbat there is no such distinction, and I shall proceed to state briefly tbe reasons tbat bave led us to this conclusion.

Tbe general rule tbat Blake v. Ferris establishes, is that a pér-son for whom work of any descriptioii is in a course of performance, under a contract, is not answerable for any’injuries tbat may result to third persons from tbe misconduct or negligence of tbe workmen or servants of tbe contractor; and tbe ground of tbe decision is, tbat as tbe persons so employed are not subject, in tbe discharge of their duties, to tbe orders, direction, or control of tbe person for whom tbe work is contracted to be done, tbe maxim of “ respondeat superior,” upon wbicb alone bis liability could be founded, has no application. It is not denied tbat tbe terms of tbe rule embrace tbe ease before us; it is not denied tbat tbe injuries of which tbe plaintiffs complain were occasioned solely by the negligence of persons in the' employ of the contractors; nor is it denied, that between these persons and the defendant there was no such relation of principal- and agent, or master and servant; as could render him liable for the damages, which the plaintiffs seek to recover. It is upon another and entirely distinct ground that the defendant is sought to be charged. • He was the owner of the building which was in the course of construction, and to which the leader and spout were attached through which the waters flowed that flooded the premises and damaged the property of the plaintiffs, and it is contended, that the single fact, that at the time of the accident he was such owner, is alone sufficient to render him liable for the consequences that followed.

We do not think so. The argument for the plaintiffs rests entirely on the broad proposition, that the' owner of fixed real property is answerable, in all eases, for any'injuries that may result to others from its actual state or condition, no matter to what cause ⅛ state or condition may be owing, nor how temporary it may be in its character or duration; and to the proposition thus stated we cannot assent. It may possibly be true, when the owners are in the actual occupation of the property, but it is certainly not true when the property is in the occupation of a tenant, unless it is shown that its state and condition were known to the owner, and that it was in his power to have prevented the injuries that followed. To hold that the owner is hable, when it appears that the injury, for which damages are claimed, was' occasioned' solely by the misconduct or negligence of the tenant himself, without any knowledge, interference, or means of prevention on the part of the owner, it seems to us, would be a perversion of law and justice, and we think it may be affirmed with confidence, that no case is to be found in which the liability of an owner has been carried to this extent. In our opinion, the liability of the owner depends, in all cases, upon a just application of the maxim, “Sic utere tuo, ut alienum non Icedas.” It therefore exists only when he is justly chargeable with á violation or neglect of some duty, which his relation to the property as owner may be properly held to impose; and in the application of this rule we can see no ground for making a distinction between the liability of the owner for the misconduct or negligence of a contractor, and his liability for the misconduct or negligence of a tenant. In both, cases, in order to render Mm liable, the fact that the misconduct producing the injury for wMeh damages are claimed, was known to Mm, and that it was his duty, and in his power to have prevented its consequences, are necessary to be proved. The employment of the contractor is, in its nature, just as independent of the will of the owner, as the ordinary conduct of the tenant; and when the contract is for the construction of an entire building, the ground, upon which the building is to be erected, is just as truly in the occupation of the contractor, as the ground covered by a lease is m the occupation of the tenant. The possession, as necessary to the prosecution of the work to which the contract relates, is just as certainly vested in the contractor, by force of his contract, as the possession of demised premises is vested in the tenant, by force of his lease. It is said, that the owner, whenever he may please, in the mere exercise of Ms own will, may remove the contractor from the possession, but if this power belongs to Mm as owner — which we neither affirm nor deny — it is not a power which he is bound to exercise, or can be justified in exercising, unless the known misconduct of the contractor has been such as to render its exercise a positive duty; and until it is exercised, the possession of the contractor is the possession of the owner, only in the same sense in which the possession of a tenant is, in judgment of law, that of his landlord. In each case, the possession is derived from the owner, and is held in subjection to his paramount title, but in both, the possession, so long as it continues, is exclusive. In our opinion, therefore, there is no reason whatever for holding that the responsibility of the owner for injuries to third persons during the continuance of this possession is greater in the one case than in the other. We think that in reason and in law the cases, in this respect, are not distinguishable.

But although we cannot hesitate to reject the proposition on wMch the counsel for the plaintiffs was obliged to rest his case, we cannot say that it is wholly destitute of authority. It must be admitted that it is fully sustained by the decision of the Supreme Court of Massachusetts, in the case of Lowell v. Boston and Lowell Railroad Company, (23 Picker. 24,) and by that of the Court of Common Pleas in England, in the much earlier case of Bush v. Steinman, (1 Bos. & Pull. 404;) but we hold it to be quite certain that neither of these cases can now be regarded as law. The opinion of the conrt in Lowell v. Boston Railroad Company, is expressed in terms that render it irreconcilable with all the leading cases bearing on the question, both in England and in this state, and the decision is in onr opinion inconsistent with the subsequent decision of the same court in Earle v. Hall, (2 Metc. 353,) and, although not in terms, yet in effect, was overruled by the judgment which Chief Justice Shaw, as the organ .of the court, then delivered. In England, the case of Bush v. Steinman was denied to be law, and was expressly overruled by the Court of Exchequer, in Reddie v. London and North Western Railroad, (4 Excheq. 244,) and, as we understand the opinion of Mr. Justice Mullett was meant to be overruled by the Court of Appeals in Blake v. Ferris. It may be true, that if we examine with attention the facts that were in evidence in Blake v. Ferris, we shall be satisfied that the question whether -the defendants were Hable as owners of the real property to which the contract related, did not properly arise; but it is nevertheless true, that the question was, in fact, raised, and was entertained by the court and discussed by the counsel, and, if the opinion of Mr. Justice Mullett is to be considered throughout, as also the opinion of his brethren, was decided by the court, as the same question is now decided by ourselves — namely, that the mere fact, that a contract relates to real property, makes no difference in the liability of the owner for the misconduct or negligence of the contractor or his servants. He is not liable for an' injury for which a compensation in damages is sought, unless it is proved that the injury was owing to some violation or neglect of his own personal duties. In stating this to be the law, we are not to be understood as saying that there are no cases in which an action for damages may be maintained against the owner for an injury directly resulting from an act of the contractor or his servants. When the act cannot be imputed to the negfigence or misconduct of the contractor, but is done in execution of the contract and in accordance with its terms, it is against the owner, as the person primarily, if not solely liable, that the action is properly brought, and it was upon this ground that the Court of Queen’s Bench in Ellis v. Sheffield Gas Company, (22 L. and Eq. R. 198,) and this court, in Lacour v. Mayor of New York, (3 Duer, 405,) held that the plaintiffs were entitled to recover. So, where the act or neglect of a tenant or contractor creates a nuisance, with a knowledge of the existence of which the owner is justly chargeable, it may be admitted, that in the exercise of his powers as owner, he is bound to prevent the continuance of the nuisance, and that his neglect in the performance of this duty, will render him liable to third persons for the damages, which they are shown to have sustained.

As it is not, and cannot be pretended that the ease before us falls within either of these exceptions, it follows, from the observations that have been made, that the verdict for the plaintiffs, as contrary to law, must be set aside, and that the defendant is entitled to our judgment, dismissing the complaint with costs.

Judgment accordingly.  