
    Boheimil Wodroczka, Appellant, v. The Consolidated Gas Co. et al., Respondents.
    (Supreme Court, Appellate Term,
    November, 1899.)
    1. Negligence — Essentials of liability to third party for the fall of a gas-holder.
    Where a third party, working in an adjoining building, brings an action to recover damages, of a corporation, for personal property which was injured by the fall of a gas-holder upon the building where he was working, and which gas-holder was, as alleged, being constructed for the corporation by contractors, the third party must prove that, at the time of the accident, the corporation owned, or was in possession, or was in control, of the gas-holder.
    8. Same — Degree of care towards third party.
    The degree of care which must be exercised toward a third party is merely ordinary care.
    3. Same — Eall of gas-holder not proof per se of negligence.
    The fact, that the gas-holder fell, does not in itself raise a presumption of negligence under the doctrine of res ipsa loquitur.
    
    Appeal by the plaintiff fromo a judgment rendered in favor of the defendants, dismissing the complaint on the merits, in the Municipal Court, seventh district, borough of Manhattan.
    Morris Cukor, for appellant.
    Turner, McClure Rolston, for respondent Consolidated Gas Company.
    ' Frank Verner Johnson, for respondents W. J. & F. J. Logan.
   MaoLean, J.

In this action to recover damages for injury to personal property, by the falling of part of a neighboring gasholder upon the building wherein the plaintiff was at work, there is utter absence of proof of ownership or control over the gasholder at the time of the accident. The only evidence relating to ownership consisted in the introduction in evidence of a contract between the defendants, the Consolidated Gas Company and the Logans, dated April 15, 1898, in which the gas company is denominated owner. Reference to the contract discloses that the Logans had agreed to erect a quadruple section gas-holder, with steel tank and guide frame and other appurtenances,” for the gas company, and to “ complete the same within six months after the time when the foundation to be prepared by the owner for the reception of the said tank and gas-holder is sufficiently advanced to allow the contractor to commence work.” There is nothing in the case to show that the work was completed. This contract provided for the erection of nothing shown to be unlawful. The alleged accident occurred on December 13, 1898. If the contractors were still in control, they were the parties to look to; if the work had been completed and turned over, the gas company was the party to look to, provided it was at the time the owner, or in possession and control. In this particular the contract avails nothing, because it proves nothing as to possession or control by either of the defendants at the time of the accident.

Assuming, however, that the plaintiff did establish that the company, or the contractors were, either or both, in possession and control at the time of the accident, the plaintiff still failed to establish negligence on their part. He failed to recognize a distinction, which has been carefully guarded by the courts of this state as well as by nearly all other jurisdictions in this country, between actions founded in negligence, where a contract relation existed between the parties, and those in which the defendant owed no other duty than to use such ordinary care and caution as the nature of his business demanded to avoid injury to others.” Cosulich v. Standard Oil Co., 122 N. Y. 118, 126. He failed to give evidence of other facts from which an inference of the fact of negligence could be drawn, proof of the collapse of the tank alone being insufficient to raise the presumption of the fact of negligence under the doctrine of res ipsa loquitur. The distinction referred to in the Cosulich case applies to the present case, but, there being merely want of merit in the proof, the judgment should be modified by striking therefrom “ on the merits,” and as thus modified affirmed, leaving the plaintiff to take such further action, if any, as may be advised. Code Civ. Proc., § 1209.

Fbeedmaw, P. L, and Leveuteitt, J., concur.

Judgment modified, and, as modified affirmed, with costs.  