
    Bridget Healey, Adm’rx of Patrick Healey, Pl’ff, v. James B. Smith, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    Master and servant—Negligence.
    Plaintiff’s intestate was employed by defendant, and was killed by the falling of a chute erected to remove rubbish from a burned building, which he was attempting to clear of obstructions which had been placed therein the day before by his fellow servants or other persons unknown. It appeared that the chute was properly constructed, and that defendant, had furnished suitable tools to remove obstructions. Held., that there was nothing to show that defendant had failed in his duty to deceased, and that the complaint was properly dismissed.
    Exceptions ordered heard at general term in the first instance.' after dismissal of complaint
    
      William Boardman, for pl’ff; Jacob F. Miller, for de’ft.
   Patterson, J.

The plaintiffs intestate (Healey), a laborer-employed by the defendant, was killed by the falling of a. chute, through which the debris remaining after a fire in a. building in the city of New York was to be removed from the upper stories of that building to the street. The defendant, was the contractor for the reconstruction of that building,, which was partially destroyed, and it was part' of his contract to remove the rubbish. The chute was not built by him, but by persons skilled in the making of such appliances, and. it is not contradicted that, if used in a proper way, it was entirely sufficient for the purpose for which it was intended. Plaintiff’s intestate on the day of . his .death was at work at this chute, in the upper part of the building, when it. was ascertained that it was clogged or obstructed by heavy matter or material which should not have been put in it, and it appears that such heavy material was so put in the-day before the accident by the fellow servants of the deceased or by other persons. He and another workman finding that the chute' was obstructed went down to the roof of a structure erected over the sidewalk, to clear it, and while thus at work the chute fell and the plaintiffs intestate was killed. It appears in evidence' that the chute was properly constructed, and there was testimony to show that it had been cut as by a saw, and that the timbers or-boards of which it was composed had not been pressed out as if' by force from the interior of the slide, and also that one Kennedy,, a fellow workman, who went down with Healey, had a saw in bis-hand when he so went down. It also appeared that there were sufficient and proper appliances for the removal of large pieces of rubbish which could not properly be thrown down or passed through the chute. On this testimony the justice presiding at the-trial dismissed the. complaint, but ordered the exceptions to bell eard in the first instance at the general term.

The dismissal of the complaint was clearly right. There was nothing to show that the employer had failed in his duty to the-servant. The chute was well built and entirely adequate ; it had become only the day before unserviceable by the neglect of the-fellow servants of Healey or by the acts of independent persons. The accident was evidently occasioned by the overtaxing of the capacity of the chute, which was well known to Healey, and he attempted to remedy it, and in so doing the fatal accident occurred. That is really all the evidence there is, and it is not enough to prove such negligence on the part of the employer as would charge him with responsibility for Healey’s death.

The exceptions must be overruled and judgment directed that the complaint be dismissed on the merits, with costs.

Van Brunt, P. J., and O’Brien, J.-, concur.  