
    Bernard Denenfeld, Appellant, v. Ludwig Baumann and David Froehlich, Composing the Firm of Ludwig Baumann & Company, and Lois H. Baumann and Others, as Executors, etc., of Thomas C. Lyman, Deceased, Respondents.
    Negligence— an employee of tenants injured by the fall of an elevator ■overloaded by direction of the tenants foreman — neither the owner of the building nor the tenants are liable ■■— dismissal of a complaint on the opening.
    
    Where the machinery generating the power to run an elevator, as well as the engineer who manages such machinery, are furnished by the owner of the building in which the elevator is, and the elevator itself is operated by employees of the tenants of the .building, the owner is not liable t.o an employee of the tenants who is injured by- the fall of the elevator resulting from the fact that it was overloaded by the direction of the tenants’ foreman who had control of the work in which the injured employee was engaged at the time of the accident.
    In such a case the foreman superintending the loading of the elevator acts as a fellow-servant of the injured employee and not as the representative of the tenants, and the latter are not liable to the injured employee for the ■foreman’s negligence in that respect.
    The dismissal of a complaint upon the opening of counsel is not to be encouraged.
    Appeal by the plaintiff, Bernard Denenfeld, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county óf New York on the 15th day of February, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      After the entry of the judgment appealed from, Thomas 0. Lyman, who was one of the original' defendants, died, and his •executors were thereupon substituted in his place and stead for the prosecution of the appeal.
    
      M. A. Sachs, for the appellant.
    
      William H. Shepard, for the respondents.
   Patterson, J.:

This action to recover damages for personal injuries, caused to the plaintiff by the falling of an elevator, was originally brought against Thomas C. Lyman, the owner of a building in which the elevator was operated, and Baumann and Froehlich, his tenants. The complaint charged both the landlord and tenant with negligence, that of the former consisting, according to the allegations of the complaint, in neglecting to furnish'the plaintiff with reasonably safe and proper machinery for operating and running the elevator and in failing to ■employ skillful and competent engineers and servants to operate it, ■and by reason of his failure to give the plaintiff notice or warning that the elevator and engine attached thereto were in an unsafe and iinproper condition. The negligence attributed to Baumann and Froehlich, who were the plaintiff’s employers, according to the complaint, was in failing and neglecting to furnish the plaintiff with a reasonably safe and proper place in which to prosecute his work and in failing to give the plaintiff any notice or warning that the elevator in which the plaintiff was ordered to prosecute his work was in' an unsafe and improper condition, and by reason of the incompetencv of the servants and agents of the defendants Baumann and Froehlich. The plaintiff and seven or eight other men put upon the elevator a mass of material, and were being drawn up with it, when .the car fell and the plaintiff was injured.

On the trial, the plaintiff’s counsel in his opening to the jury stated facts upon which he relied to recover against both defend.ants. What he stated to the jury is set forth in full in the record. After the opening, a motion was made to dismiss .the complaint as to Mr. Lyman, which motion was granted, and the action of the ■court in so granting it presents the first question to be considered on this appeal.

In the statement of counsel , to the juiy, the allegations of the complaint respecting the cause of the accident and the relation of Lyman thereto,- seeni to have been entirely abandoned. Counsel stated the facts to be, so far as Lyman was concerned, that'the “elevator was operated by Mr. Lyman or his employees; that is to say,, the engineer who started the machinery going and supplied the power to the elevator,’’ and “the elevator itself was run by the ■ employees of the defendant Baumann.” All that was claimed, .therefore, with reference to Lyman was that his engineer started, the machinery and that the power to move it was supplied by Lyman. Counsel then proceeded to state that this elevator was. constructed with a carrying capacity of 4,500 pounds; that Baumann and Froehlich’s servants placed upon it a load weighing-between 7,500 and 8,000 pounds, and he distinctly asserted that. “ as the result of that negligence this elevator fell, and the falling-of the elevator caused the injury complained of.” He also said, “We will show by the experts that this overloading was the cause-of the -elevator falling.” It will be observed that there was noth- . ing claimed nor suggested in the way of .¡woof against Mr. Ly man to bear out any one of the allegations of the complaint concermingnegligence attributable to him. The whole casé was made to depend upon the single central fact of the overloading of the elevator,, chargeable to the servants of the tenant and in no way connected with the defendant Lyman or his servants or employees.

Dismissals of complaints upon the opening of counsel are not to-be encouraged, but as Avas'said in Garrison v. McCullough (28 App. Div. 468), there are cases in which the court is no.t' only empowered to adopt that course, but such course is entirely proper. (Oscanyan v. Arms Company, 103 U. S. 261; Ward v. Jewett, 4 Robt. 714.) It would have been in this case a useless consumption of time to continue a trial against a defendant who could not by any possibility, be held liable on the proof to which counsel declared in substance he would coniine himself. The trial proceeded as to-the defendants Baumann and Froehlich, and upon the conclusion of the testimony offered by the plaintiff the complaint Avas dismissed as to them. It was shown that the overloading of the elevator caused the accident, and that that overloading was directéd -by one Hole, who was called a foreman, and who seems to have had direetian and control of the work the plaintiff and other laborers working with him were doing when the accident occurred. It was shown that the cause of the acciden t'was NoleV negligence. There is evidence from which the conclusion could have been drawn that the plaintiff knew the'elevator was overloaded, and that with that knowledge he assumed the risk of going up on it in that condition ; but irrespective of that question, and without further reference to it, it was sufficiently proven that Hole was only a fellow-servant of the plaintiff, and that the negligence was that of a fellow-servant and not of a person standing in the relation of a representative of Baumann and Froehlich. Nothing is to be assumed as fixing a relationship from the name given to the person whose negligence caused'the injury. He may be called a foreman or a superintendent, or by any other name. The liability of the master, as is-declared in Crispin v. Babbitt (81 N. Y. 521), depends upon the character of the act in the performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owres to his servants, he is responsible to them for the manner of its performance. The converse of the proposition necessarily follows. ' If the act is one which pertains only to the duty of .an operative, the employee performing it is a mere servant, and the master, although liable to-strangers, is not liable to a fellow-servant for its improper performance.”

In this case there is no evidence as to improper or unsafe machinery or implements, or that IN ole was an unfit servant to employ in and about the elevator. In Slater v. Jewett (85 N. Y. 74) the rule laid down in Crispin v. Babbitt (supra) was reiterated, and it was again declared that if the act were something relating to the duty of an operative only, the employee, performing it was a mere servant ; and in Cullen v. Norton (126 N. Y. 1) it is said that the rule in Crispin v. Babbitt remains in full vigor and force. That rule is again stated in Hankins v. N. Y., L. E & W. R. R. Co. (142 N. Y. 420).

In the case at bar, the master's duty was to provide a proper elevator — one that would be safe with proper and reasonable use. That, duty was performed. Further, there-is nothing to show that Nole was an incompetent person, or that there was any fault imputable to Baumann and Proehlich in employing him. It cannot be pretended that a master must stand by and' himself personally supervise the loading and unloading of a freight elevator every time it. is used by his servants in his business. The fall of this elevator was caused by the overloading by Nole. It was an act done only in-.the" performance. of work which Nole and the others were employed to do, and for the manner in which they performed'their own work the master cannot be liable.

As was remarked in Cullen v. Norton (supra), the manner of the performance of each of the various details of work by which, as a whole, the work is to be. carried on, rests necessarily on the intelligence and care and fidelity of the servants to whom those details are intrusted; and this accident was connected with “a.detail of the working or management of the business, the risks attending which have been assumed by the party taking employment.”

The judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., Barrett, -Rumsey and O’Brien, J J., concurred.

Judgment affirmed, with costs.  