
    Otto Hayes, Respondent, and George Hayes, Plaintiff, v. John Borup, Defendant, and Town of Eastchester, Appellant.
   Judgment reversed on the law, with costs, and complaint dismissed, with costs. Plaintiff, respondent, an employee of the New York Telephone Company, picked up a percussion cap which was among rubbish on the floor of a building in the course of construction and and owned by appellant, and scraped it with a pair of shears. The cap exploded and injured him. There is no evidence as to how the cap came to be on the floor. The proof shows that the building was being erected by a general contractor and that appellant took no part in the performance of the work other than such general supervision as was necessary to insure performance in accordance with the contract. Under the circumstances appellant would be liable only for some affirmative act of negligence. (Joyce v. Convent Avenue Construction Co., 155 App. Div. 586; Silverman v. Binder, 130 id. 581, cited with approval in Besner v. Central Trust Co., 230 N. Y. 357, 362.) Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.  