
    Ella V. Fitzgerald, Respondent, v. John H. Timoney, Appellant.
    (City Court of New York — General Term,
    June, 1895.)
    A landlord is not liable for injuries received by a tenant from the fall of plastering in her apartments, although he had promised to make repairs and the ceiling was out of repair at the time, where the proximate cause of such fall was the slipping of a servant of an independent contractor while laying the floor in the apartment above, which pushed his foot through the ceiling,
    Appeal from judgment in favor of the plaintiff, entered upon a verdict and from order denying motion for a new trial.
    
      W. H. Deady, for appellant.
    
      F. O. Devlin, for respondent.
   Conlan, J.

This is an appeal from a judgment entered on the verdict of a jury and from an order denying the defendant’s motion for a new trial.

The action is based on negligence, and it follows, therefore, that unless the negligence of the defendant was the cause of the injury the judgment must be reversed.

The plaintiff was residing with her family, occupying a floor in the house of the defendant at No. 252 East Fifty-second street, on the 28th of September, 1891.

The evidence of the" plaintiff is to the effect that when the premises, were rented the janitor of the defendant promised that the defendant would make the repairs.

That about July or August, 1891, she, with her sister, called the attention of the defendant to the ceiling in the kitchen, where it had cracked and sagged and was thought to be in a dangerous condition, and that the defendant promised to repair it, but did not do so up to the twenty-eighth day of September, when a large piece of plastering fell from the ceiling, striking the plaintiff upon the head and shoulders, thereby causing the injury complained of.

The defendant, while denying the promises to repair, alleges and shows that about the time complained of he made a contract with one McOormaclc, a carpenter, to take out the old and put down a new floor in the apartments immediately over the apartments occupied by plaintiff, for the sum of sixty-four dollars.

That McCormack was engaged in said work on the 28th day of September, 1891, and that he had in his employ his son and one Luby, who had formerly been in the express' business. '

Luby testifies: I was helping McCormack and his son take up the floor of the house on 5 2d street; 1 was standing on the beam when my foot slipped and went through the ceiling and broke two laths, and a lot of mortar fell on the table; the hole was big enough for my foot to go through; the broken laths fell down with the ceiling.”

This testimony is corroborated by one James McCormack, the son of' the contractor, and who was assisting his father at the time.

It is not contended that the person assisting McCormack at the time of the accident was in the employ of the defendant or under his control or subject to his directions; he was the servant of the contractor McCormack, employed by him and entirely subject to his orders.

No act of negligence on his part could make the defendant liable. Hexamer v. Webb, 101 N. Y. 377; Kelly v. Cohoes Knitting Mill, 32 N. Y. Supp. 459.

The plaintiff does not pretend to know what caused' the plaster to fall; therefore, assuming for the sake of the argument that the defendant did agree to make repairs, and that the kitchen plastering was out of repair on the 28th day of September, 1891, yet the uncontradicted evidence shows that the impaired condition of the plastering was not the proximate cause of the injury.

It is true that the ceiling might have fallen later through inherent defects if not repaired, but the court cannot speculate as to the time when or that any person would be injured thereby.

The undisputed evidence shows that the proximate cause of the injury was the slipping of the contractor’s employee, thereby pushing his foot through the ceiling, displacing a large portion of the plaster.

There was, therefore, no disputed question of fact controlling on the case for the jury to determine, and defendant having shown his contract with McCormack and traced the immediate cause of the injury to persons other than his agents, servants or employees, he was entitled to the direction asked for by his counsel at tke close of the testimony.

The refusal was error.

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

Newbueger, J., concurs.

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