
    Joseph L. Gunhouse, Respondent, v. Max Fraenkel, Appellant.
    Second Department,
    November 27, 1912.
    IsTegligence — lease of wall of building for advertising purposes — fall of scaffold by breaking of parapet—injury to employee of contractor — when owner of building not liable.
    A landowner who gives to another a right to use a side wall of a building for advertising purposes is not hable for injuries received by an employee of one contracting to paint the advertisement on the wall owing to the fact that the parapet, from which the contractor suspended a scaffold, broke and the scaffold fell, there being no active negligence on the owner’s part. Under such circumstances the only duty of the owner is to commit, no active negligence; he is not liable to the employees of the contractor for passive negligence.
    Appeal by the defendant, Max Fraenkel, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 28th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Jeremiah J. Coughlan, for the appellant.
    
      Frederick S. Martyn [Joseph A. Burdeau with, him on the brief], for the respondent.
   Woodward, J.:

The defendant owns a certain building at No. 1023 Myrtle avenue, Brooklyn. An agreement had been made giving the use of one of the side walls of this building to Michael Sholtz and James K. Atkinson for advertising purposes, the terms of the agreement not appearing in the record One George B. Singer took a contract from Sholtz and Atkinson to paint the sign upon the building, and the plaintiff, an employee of Singer, with a helper, was engaged in painting the sign when the accident complained of occurred on the 27th day of September, 1911. It appears that the plaintiff with his helper had placed a swinging scaffold along the face of the wall, using S ” hooks with the large end of the hook clasped over the top of the parapet or fire wall of the building. This wall is described as projecting, about eighteen inches above the roof and as being about twelve inches in thickness, constructed of brick. With the scaffold thus suspended from these hooks and while the plaintiff and his helper were at work the top of the wall at a point where one of the hooks was placed pulled off and the plaintiff was thrown to the ground below, sustaining injuries for which the jury has given him a verdict for $2,000. The defendant appeals from the judgment entered upon the verdict and from an order denying his motion for a new trial on the minutes.

There is no conflict in reference to the happening of the accident, nor is there any substantial conflict in the evidence in reference to the condition of the wall. The only serious question is whether, as a matter of law, the defendant owner of the building owed to the plaintiff any duty in the premises other than to refrain from active negligence It is undoubtedly true that if the defendant, knowing the use which was to be made of the building, had undertaken to furnish a place for the hooks or had supplied any appliances he would be answerable for resulting damages due to defects in these appliances, as in the case of Coughtry v. Globe Woolen Co. (56 N. Y. 124) and other authorities cited by the respondent, but' here the defendant was entirely passive. Although defendant knew that the wall was to be used for displaying a painted advertisement, there is no evidence which would justify a finding that he knew the method which was likely to be employed in painting the sign, certainly none that he did anything to prer pare the building for the hanging of the scaffold or to in any manner assume responsibility for its condition. It thus appears that Sholtz and Atkinson were making use of this wall under an agreement which in law did not impose any duty upon the defendant either in respect to its condition at the time when such agreement was made or at any time thereafter. There is no evidence of any warranty or covenants in respect to the premises, and it cannot be said that the defendant, as the owner of the premises, invited the plaintiff to come upon them. The plaintiff entered upon the premises at the invitation of Sholtz and Atkinson, and these owed the duty of exercising reasonable care, if any such duty existed, and in Callan v. Pugh (54 App. Div. 545) it was held that an owner of a building owes to an employee of an independent contractor doing work upon the building the duty to commit no active negligence, but that he is not liable for any passive negligence such as a failure to provide the employee of the independent contractor with a safe place in which to work. We are clear that in the case at bar the plaintiff has failed to establish a cause of action for the reason that the defendant as the owner of the building under an agreement with third parties as to the use of the wall thereof, owed him no duty under the circumstances disclosed.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Jems, P. J., Hibschbeeg, Burr and High, JJ,, concurred,

Judgment and order reversed and new trial granted, costs to abide the event.  