
    William A. Cooper, Respondent, v. Hedden Construction Company, Appellant, Impleaded with Baldwin Engineering Company, Defendant.
    First Department,
    May 31, 1912.
    Negligence — action against contractor for damages to skylight — missiles thrown by employees of sub-cóntractor — nonsuit — damages.
    In an action by a photographer, occupying a studio on the top floor of a five-story building, against a general contractor engaged in the construction of a twenty-story building, which was nearly completed, to recover damages for the breaking of the skylight over the studio alleged to have been caused by missiles thrown from the windows of the building which the defendant was constructing, it appeared that the whole trouble covered only a period of ten days; that the defendant’s superintendent did all in his power to abate the nuisance; that two boys, employees of a sub-contractor, over whom ¡the defendant had no control, threw the missiles, and were subsequently discharged at the request of the defendant’s superintendent. -Held, that the plaintiff should have been nonsuited;
    That, if the case should have been sent to the jury on any theory under such circumstances, it was error to refuse to charge that the plaintiff could not recover against the defendant unless the jury was satisfied that the acts complained of were done by a servant or employee of the defendant;
    That the plaintiff could not recover for the injury done to a painting standing in his studio for the purpose of being photographed; but • belonging to a third person.
    Appeal by the defendant, the Hedden Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1912,' upon the verdict of a jury for $525, and also from an order entered in said clerk’s office on the 29th day of January, 1912, denying- the said defendant’s motion for a new trial made upon the minutes.
    
      John Burlinson Coleman, for the appellant.
    
      Charles S. Mackenzie, for the respondent,
   Scott, J.:

The appellant in March, 1910, was the general contractor for the erection of a twenty-story building: on the northeast corner of Fifth avenue and Thirty-first street in the city of New York. The defendant Baldwin Engineering Company was a sub-contractor for the heating and ventilating work. The work upon the building was approaching completion, and there were a considerable number of workmen employed.

Plaintiff was a photographer occupying a studio on the top floor of the five-story building on the southeast corner of Thirty-first street and Fifth avenue. The studio was lighted by a large glass skylight upon the roof. On March 21, 1910, the skylight over plaintiff’s studio was broken by some missile or missiles which were undoubtedly thrown by some, one from one of the windows of the building which appellant was engaged in constructing. The same thing was repeated several times during the following ten days, after which the annoyance seems to have ceased. The plaintiff, a day or two after the first breaking, sought out the superintendent in charge of the building operations, an employee of appellant, and complained to him. He seems to have been sympathetic and to have shown a disposition to do all in his power to abate the nuisance. At length the plaintiff, by watching, was able to identify two young boys as the persons who threw the missiles. They proved to be employees of the Baldwin Engineering Company over whom neither defendant nor its superintendent had control. The latter, however, called upon the foreman of the Baldwin Company to take action and after consultation with plaintiff, and with his approval, the delinquents were discharged and thereafter the annoyance ceased. The whole matter covered only a period of ten days. It is not easy to see upon what principle the appellant can be held hable for damages upon this state of facts. The'offenders were not its servants or under its control; the annoyance was not persisted in for a sufficient length of time to grow into a nuisance, and defendant through its superintendent, was prompt and active in taking measures to bring the annoyance to an end. The plaintiff relies upon Hogle, v. Franklin Manufacturing Company (199 N. Y. 388), but that case presented a very different state of facts. The persons who threw objects from the windows of the defendant’s factory onto plaintiff’s lot were employees of the defendant, and their custom , of doing so had lasted continuously for eighteen months: These facts were brought to the attention of defendant’s officers who took no effective means to prevent a recurrence. On the contrary, the practice continued and increased, resulting finally in personal injury to the plaintiff. It is not necessary to point out in detail the wide difference between the case cited and the present. A recitation of the facts is sufficient. Upon the evidence as it stood we consider that defendant was entitled to a non-suit, and if the case, on any theory, should have been sent to the jury it was clear error to refuse to charge that the plaintiff could, not recover against this defendant unless the jury was satisfied that the acts complained of were done by a servant or employee of the defendant.

We think that it was also error to permit the plaintiff to recover for the injury done to a painting standing in his studio for the purpose of being photographed, but belonging to a third person. Under the circumstances there could be no liability from plaintiff to the owner, for plaintiff could certainly not have been charged with negligence in subjecting the painting to damage which was not to be foreseen.

The judgment must be reversed and a, new trial granted, With costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

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