
    William Hogan, Respondent, v. John Arbuckle and Others, Appellants.
    Negligence— liability of the owner of a building, being altered for a new use, to an employee of one contractor injured by reason of its dangerous condition caused by the negligence of another contractor.
    
    An owner of a building who employs a contractor to transform it from a warehouse into a sugar refinery is not liable to a person in the employ of a corporation engaged to do the electrical work in the building for injuries sustained by such employee while the building was entirely given up to the work of alteration, in consequence of his falling through a hole in a floor of the building his view of which was obstructed by an accumulation of rubbish, where there is no evidence that the owner exercised any control whatever over the building, or, at least, over that portion of it in which the injured employee was at work.
    Appeal by the defendants, John Arbuckle and others, 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 31st day of January, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day of February, 1901, denying the defendants’ motion for a new trial made upon the minutes.
    
      
      Charles C. Nadal-\_George O. Redúngton with him on the brief], for the appellants.
    
      William, A. Jones, for the respondent.
   Willard Bartlett, J.:

In December, 1897, the defendants entered into a contract with John Kennedy & Son for the reconstruction of a building at the corner of John and Pearl streets in the present borough of Brooklyn. The work covered by the contract was expressly specified to include all of the labor and material of every kind necessary to transform the present coffee warehouse on the corner of John and Pearl streets, Brooklyn, into a melter house of a Sugar Refinery, including the mason, stone, iron, carpenter, roofing, shoring, and all other work incidental thereto, necessary to put in complete working order the work specified and shown by the plans.” The firm of contractors took possession of the building for the purpose of doing this work in the early part of December, 1897, and did not complete their work until July or August, 1898. On May 21,1898, the plaintiff, who was then in the service of the Brooklyn Electrical Equipment Company, was engaged in doing some electrical work in this building, upon the third floor from the ground, and, while thus occupied, fell through a hole in the floor to the floor below. According to his testimony he did not know the hole was there, and it was obstructed from view by an accumulation of rubbish piled up along the line of his approach. He has recovered a verdict of $5,000 damages in this action for the injuries which he sustained by the fall thus occasioned, and the verdict is sought to be upheld upon the ground that the defendants are liable by reason of their failure to provide him with a reasonably safe place in which to do his work. I think the case falls within the doctrine of Murphy v. Altman (28 App. Div. 472) and similar decisions, and I am, therefore, of the opinion that the judgment, upon the evidence in the record before us, cannot be upheld.

In the case cited it was decided that the owner of a building in the course of construction is not liable to an employee of one contractor for an injury caused by the negligence of another contractor. "While it is conceded to be the duty of an owner to use reasonable care in the construction of his building, the care required under such circumstances differs materially from that demanded in the case of a completed structure. In such a case where the work of a number of different contractors is earned on concurrently “ there is no assurance or guaranty on the part of the owner that each contractor shall be guilty of no negligence by which the workmen of his own or the workmen of other "contractors shall be injured. So far as the owner is concerned,” said Mr. Justice Cullen in the Murphy case, “ each contractor or his workman takes the risk of fault on the part of his fellow-contractors, and his only recourse is against the party who, either personally or through his servants, has been guilty of fault.” (See, also, Callan v. Pugh, 54 App. Div. 545; Jehle v. Ellicott Square Co., 31 id. 336.)

In the case at bar the evidence leaves no doubt that the situation was practically the same as that which would exist in the erection of an entirely new structure. That this was the view of the learned trial judge is shown by the statement in his charge to the effect that here was a building in the course of radical renovation practically the same as a building being erected.” On the day of the accident the building was entirely given up to the work of alteration. The sub-contractors under the firm of John Kennedy & Son, who were doing the carpentering and framing work, were then employed there and continued to be so employed about three weeks after the accident. If there was any negligence in leaving the hole through which the plaintiff fell in a dangerous condition, it appears to have been attributable to them rather than to the defendants. Indeed, there is no evidence that the defendants at this time exercised any control whatever over the building, or at all events over that portion of it in which the plaintiff was at work.

For these reasons I think the judgment should be reversed.

All concurred.

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