
    Meyer Zettel, Respondent, v. James Taylor, Appellant, Impleaded with Sarah Lichtenstein and Others, Defendants.
    Second Department,
    October 22, 1908.
    Negligence — injury by fall of implement from building—answer — admission by failure to deny.
    Ap allegation that the defendant was engaged in constructing and repairing a building is admitted by a failure to deny it.
    A plaintiS who was injured by the fall of a hammer from a building under repair, by showing that the defendant was constructing a fire escape, and that immediately after the accident tools and instrurnents used for that purpose were found on the fire escape, and that no other workman or tools were seen about the building, sufficiently connects the defendant with the accident, especially where an allegation that he was constructing the fire escape is not denied.
    Appeal by the defendant, James Taylor, 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 4th day of February, 1908, upon the verdict of a jury for $500, as amended by an order entered in said clerk’s office on the 10th day of February, 1908, and also from an order entered in said clerk’s office on the 13th day of February, 1908, denying the said defendant’s motion for a new trial made upon the minutes.
    
      W. E. Benjamin, for the appellant.
    
      Nathan D. Stern [ Julius J. Michael with him on the brief], for the respondent.
   Rich, J.: .

The only question presented for our consideration by this appeal is whether, upon the trial there was sufficient evidence connecting the defendant with the happening of the accident to justify the submission of the case to the jury. The complaint alleges : “ That the defendant, James Taylor, was at all the times hereinafter mentioned engaged in the construction, building, repairing and placing of certain iron fire escapes and the appurtenances thereto belonging ” upon a building in the city of New York. This allegation includes the-time of the accident and is admitted by'the failure to deny it. The evidence shows that between half-past eleven in the forenoon and noon, while the plaintiff was passing along the sidewalk in front of the building upon which the defendant was engaged in constructing the fire escape, an ironworker’s hammer, weighing from eight to ten pounds, “ what they fixed those fire escapes” with, as the plaintiff says, fell ‘ from above and struck him on the 'head, inflicting the injuries for which he has recovered. Immediately after the accident tools and instruments used for putting up fire escapes were found lying on the fire escape at the fourth or fifth story of the building — some forty or fifty feet above the sidewalk — and the witness who found them testified that he did not see any other workmen' about and did not see any tools except on the fire escape. The defendant gave no evidence.

I think the uncontradicted evidence in connection with the admission sufficiently connected the defendant with the accident to establish a prima facie case. Wolf v. American Tract Society (164 N. Y. 30) and Jack v. McCabe (56 App. Div. 378), cited by the appellant, are not in point. In those cases the employees of a large number of independent contractors were engaged in work upon the building at the time of the accident, and it was not shown which contractor’s employees were guilty of the negligence resulting in the accident. In the case at bar it does not appear that any ■ work was being done upon the building except by the servants of the defendant. The distinction is clearly apparent.

The" judgment and order must be affirmed, with costs.

Present — Woodward, Hooker, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  